5 Introduction to the Intentional Torts: Protecting Property, Body, and Mind

Part I. Protecting Property and Bodily Integrity

Thus far, the standards of tort liability you’ve learned about have hinged on fault or policy fiat based on determinations of levels of risk. With these materials, we shift gears and introduce different inquiries into the conduct of the defendant, as well as the intentionality behind that conduct. Tort law defines intent in a particular way along a spectrum of volition. A person who intends to act in a given way satisfies the intent requirement for many of the intentional torts regardless of whether they intended the harm that their action caused. It’s somewhat like mens rea in criminal law, with which you may be familiar, in that it’s a required mental state that must be proven for any claim in this domain. To make out a claim for an intentional tort, the plaintiff must prove the necessary intent level required for that claim.

In addition, while there is overlap in the kinds of interests that negligence and strict liability protect, the intentional torts protect additional interests that are critically important to the system of tort law. Framing the interests accurately becomes much more important in the intentional torts, which tend to require satisfaction of rigid criteria for a claim to succeed, but which tend to protect interests more broadly than negligence or strict liability do. For instance, the tort of battery does not protect merely against physical harm, the way negligence and strict liability do. This tort protects bodily autonomy, which means that a plaintiff can sue for the invasion of that autonomy even if they’ve suffered no physical harm.

Similarly, the tort of trespass to land protects against something more than just harm to land; it protects against one’s ownership in the land and right to use it. A plaintiff can sue for trespass even if nothing happens to harm their land, merely because property ownership allows owners to stop people from coming onto their land without permission. The interest tort law is protecting runs deep and reflects normative judgment about what society values and believes.

For that reason, tort law’s protection of one’s bodily autonomy and one’s home or property may make intuitive sense. Yet tort law is somewhat idiosyncratic about what it chooses to protect. It has historically been less protection of violations connected with feelings or one’s mental state. For most of the history of American tort law, plaintiffs couldn’t recover for emotional distress alone. Courts feared fraud and expressed concern over their inability to measure genuine harm or suffering with nothing more than a plaintiff’s allegations of distress. As modern psychology made such assessments more reliable and standardized, courts were nonetheless somewhat slow to relax the limitations on recovery for emotional distress.

Scholars have noted the ways in which this sometimes reflected gendered and racist ideas, and tort law continues to need to understand and account for its internal coherence and equity. For one thing, when claims for “fright” or emotional distress succeeded, historically they were usually brought by men on behalf of women (such as a husband or father); for another, they were usually attributable to some other doctrinal justification. One of the cases in this unit, Gulf v. Luther, permits recovery by a white woman for allegedly suffering emotional distress and fright while waiting in a train station when a Black woman employed by the railway company spoke to her in a way deemed to be insulting. There are doctrines you’ll see in the case, however, that provide additional reasons for why the court might have permitted recovery despite the general rules limiting recovery for purely emotional distress. Racism and sexist tropes also play a role in the way the legal opinion proceeds and in how it construes the precedents on which it relies.

To understand tort law, it is important to observe the rhetoric used, the way that the court deals with the evidence in the case, and its unacceptable and dehumanizing treatment of the Black woman whose action is the source of the grievance. Following that, we’ll look at a case cited in Luther which demonstrates how case law entrenches racism and creates silences, systematic gaps in the record that minimize or erase the suffering of people of color and marginalized groups. None of this is comfortable to read about and it may be hard to confront. Facing these problematic legal practices is critical to understanding how the law operates as well as gaining glimpses of how to do better in listening to and amplifying marginalized voices. Even in many cases in which people of color win, often the judge, or the other parties are permitted greater voice and representation and the victorious plaintiff may be somehow silenced or almost absent, as is the case in Mulloy v. Hop Sang, the Canadian case featuring an unwanted amputation.

These cases are also meant to give you a sense of how sometimes tort law did redress some forms of social injustice; maybe not fully enough, maybe not always, but at least in some instances. In some instances, tort law can operate as a form of civil rights protection, as in Ruiz v. Bertolotti in which the court struggles to fit the fact pattern into its existing torts and yet decides not to ignore the defendant’s wrongful behavior despite the technical hurdles it must overcome to do so.

Finally, the last case in this Module, Cobbs v. Grant, provides a fact pattern that allows you to revisit negligence and test your high-level understanding of the distinctions between negligence and the intentional torts, framed against the backdrop of a medical malpractice fact pattern. It also reaffirms how the interests in battery extend well beyond the scope of a broken bone or bruise to protect a deep and robust form of patient autonomy.

Over the course of the next few classes, we will encounter sometimes painful or triggering material pertaining to race and gender, but it is material that helps us understand the scope of tort law’s reach, historically, and currently. It also helps us understand what tort law has avoided doing, and silences tort law has created by defining the suffering in society to count, or not to count, as cognizable under its doctrines.

A note about the anachronism of reading older cases: these cases remain relevant for today’s learning but reading them requires that we adopt some respectful norms of discourse. Older cases use terms that are out of date and sometimes downright offensive. Your class may develop ground rules for how to discuss sensitive issues, or address class norms in the syllabus. These suggestions offer an alternative, but please follow your course’s conventions if those are explicitly provided.

If you are reading from an opinion, you may quote the case language verbatim if you need to do so. Some students may feel that doing so is always unnecessary or triggering, but law school requires that students learn to summarize and paraphrase accurately and in some cases verbatim quotation is the safest or most accurate or efficient means of proceeding. Other students may feel that if it’s in the opinion, it is language that can be used with impunity. In addition to these contrasting views, Professors may also wish to meet their pedagogical goals and hold a stimulating conversation without sacrificing an entire class only to the problems of controversial terminology. Your professor will decide how much attention to give this issue, of course, and whether to set ground rules for class discussions. Unless otherwise instructed, I encourage you to consider the following.

  • If you are paraphrasing or describing the case, do not use the offensive term; use 21st century terms instead. For example, in the Texas cases below, instead of using the terms it uses (“colored” and “Negro woman”), use the contemporary terms, “African American” or “Black” unless you are reading the exact language of the case.
  • Lawyers cannot and should not shrink from the ugliness in our laws whether it is historical or contemporary. As they consider how to increase equity in the legal system, law students should keep in mind that refraining from critiquing racist legal statements or concepts embedded in our laws amounts to ratifying them through silence. However, I invite you to be thoughtful about whether and when hateful or offensive language needs to be read aloud. It is painful for many to hear judicial language that encodes and authorizes racism and other forms of discrimination, especially without explicit censure that signals a break with that past.

Questions for the Readings

As you read the next few cases, please keep the following questions in mind:

  • Why does it matter if an action is brought in negligence versus the intentional torts?
  • What interests does each of the domains protect, and what sorts of conduct does each regulate?
  • What do you observe about how culpability is defined and determined?
  • What do you note about the rhetoric, and judicial voice, in these opinions?

The Tort of Trespass

“A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise.” Restatement Second of Torts Sec. 329.

For a plaintiff to succeed in bringing a claim of trespass, they will need to prove the following elements:

  • unauthorized entry upon land
  • with intent

If a person enters the land of another, moving with the required level of intent that entry is a trespass if it was made without permission or beyond the permission granted. The mail carrier has a privilege to enter upon land to deliver and retrieve mail, for instance, but it is a trespass if when they drop off the mail they also pick flowers from the garden or plant seeds for the benefit of the owner. A vacationer who rents a home for a month is permitted there during that time but staying any amount of time past the checkout date triggers the start of a trespass.

In the full Module on the intentional torts, you will learn more about the intent requirement. In brief, if the defendant intended to move and then trespassed through that movement, intent is satisfied. Stating that she lost her way will not help the defendant: the intent required is the intent to move forward in space and to be where one is (even if it is not where one thought that was). Mistake does not invalidate intent because the intent is not directed at knowledge of the land’s boundaries but rather at the volitional movement. Nonvolitional movement does not satisfy the intent requirement. If the defendant was drugged and dropped on someone else’s land or catapulted onto someone else’s land the intent element for trespass is not met. In a certain sense, trespass can be seen as analogous to strict liability in that if a person appears without permission on the land of another, they are technically trespassing, regardless of their fault or intent, so long as they arrived there by their own volition. The next case pushes that notion to its outer limit and synthesizes important principles of intent and causation.

Guille v. Swan, Supreme Court of New York (1822)
(19 Johns. 381)

[Editor’s note: please note that the Supreme Court of New York is a trial court, not the highest court in that state. Somewhat confusingly, New York’s highest court is called the Court of Appeals.]

[Rule:] If an act done cause immediate injury, whether it be intentional or not, trespass lies;[1] and if done by the co-operation of several persons, all are trespassers, and all may be sued jointly, or one is liable for the injury done by all; but it must appear that they acted in concert, or that the act of the one sued, ordinarily and naturally, produced the acts of the others.

[Application and Holding:] As, where the defendant, G., ascended in a balloon, which descended a short distance from the place of ascent, into the plaintiff’s garden; and the defendant, being entangled, and in a perilous situation, called for help, and a crowd of people broke through the fences into the plaintiff’s garden, and beat and trod down his vegetables and flowers: Held, that though ascending in a balloon was not an unlawful act; yet, as the defendant’s descent under the circumstances, would ordinarily and naturally draw the crowd into the garden, either from a desire to assist him, or to gratify a curiosity which he had excited, he was answerable in trespass for all the damage done to the garden of the plaintiff.

In error, on certiorari, to the Justices’ Court in the city of New-York. Swan sued Guille in the Justices’ Court, in an action of trespass, for entering his close,[2] and treading down his roots and vegetables, &c. in a garden in the city of New-York. The facts were, that Guille ascended in a balloon in the vicinity of Swan’s garden, and descended into his garden. When he descended, his body was hanging out of the car of the balloon in a very perilous situation, and he called to a person at work in Swan’s field, to help him, in a voice audible to the pursuing crowd. After the balloon descended, it dragged along over potatoes and radishes, about thirty feet, when Guille was taken out. The balloon was carried to a barn at the farther end of the premises. When the balloon descended, more than two hundred persons broke into Swan’s garden through the fences, and came on his premises, beating down his vegetables and flowers. The damage done by Guille, with his balloon, was about 15 dollars, but the crowd did much more. The plaintiff’s damages, in all, amounted to 90 dollars. It was contended before the Justice, that Guille was answerable only for the damage done by himself, and not for the damage done by the crowd. The Justice was of the opinion, and so instructed the jury, that the defendant was answerable for all the damages done to the plaintiff. The jury, accordingly, found a verdict for him, for 90 dollars, on which the judgment was given, and for costs.

SPENCER, Ch. J., delivered the opinion of the Court.

The counsel for the plaintiff in error [Editor’s note: this is now the defendant, Guille] supposes, that the injury committed by his client was involuntary, and that done by the crowd was voluntary, and that, therefore, there was *382 no union of intent; and that upon the same principle which would render Guille answerable for the acts of the crowd, in treading down and destroying the vegetables and flowers of S., he would be responsible for a battery, or a murder committed on the owner of the premises.

The intent with which an act is done, is by no means the test of the liability of a party to an action of trespass. If the act cause the immediate injury, whether it was intentional, or unintentional, trespass is the proper action to redress the wrong. It was so decided, upon a review of all the cases, in Percival v. Hickey. (18 Johns. Rep. 257.) Where an immediate act is done by the co-operation, or the joint act of several persons, they are all trespassers, and may be sued jointly or severally; and any one of them is liable for the injury done by all. To render one man liable in trespass for the acts of others, it must appear, either that they acted in concert, or that the act of the individual sought to be charged, ordinarily and naturally, produced the acts of the others.

The case of Scott v. Shepard, (2 Black. Rep. 892) is a strong instance of the responsibility of an individual who was the first, though not the immediate, agent in producing an injury. Shepard threw a lighted squib, composed of gunpowder, into a market house, where a large concourse of people were assembled; it fell on the standing of Y., and to prevent injury, it was thrown off his standing, across the market, when it fell on another standing; from thence, to save the goods of the owner, it was thrown to another part of the market house, and in so throwing it, it struck the plaintiff in the face, and, bursting, put out one of his eyes. It was decided, by the opinions of three Judges against one, that Shepard was answerable in an action of trespass, and assault and battery. De Grey, Ch. J., held, that throwing the squib was an unlawful act, and that whatever mischief followed, the person throwing it was the author of the mischief. All that was done subsequent to the original throwing, was a continuation of the first force and first act. Any innocent person removing the danger from himself was justifiable; the blame lights upon the first thrower; the new direction and new force, flow out of the first force. He laid it down as a principle, *383 that every one who does an unlawful act, is considered as the doer of all that follows. A person breaking a horse in Lincolns-Inn-Fields, hurt a man, and it was held, that trespass would lie. In Leame v. Bray, (3 East Rep. 595,) Lord Ellenborough said, if I put in motion a dangerous thing, as if I let loose a dangerous animal, and leave to hazard what may happen, and mischief ensue, I am answerable in trespass; and if one (he says) put an animal or carriage in motion, which causes an immediate injury to another, he is the actor, the causa causans.[3]

I will not say that ascending in a balloon is an unlawful act, for it is not so; but, it is certain, that the æronaut has no control over its motion horizontally; he is at the sport of the winds, and is to descend when and how he can; his reaching the earth is a matter of hazard. He did descend on the premises of the plaintiff below, at a short distance from the place where he ascended. Now, if his descent, under such circumstances, would, ordinarily and naturally, draw a crowd of people about him, either from curiosity, or for the purpose of rescuing him from a perilous situation; all this he ought to have foreseen, and must be responsible for. Whether the crowd heard him call for help or not, is immaterial; he had put himself in a situation to invite help, and they rushed forward, impelled, perhaps, by the double motive of rendering aid, and gratifying a curiosity which he had excited. Can it be doubted, that if the plaintiff in error had beckoned to the crowd to come to his assistance, that he would be liable for their trespass in entering the enclosure? I think not. In that case, they would have been co-trespassers, and we must consider the situation in which he placed himself, voluntarily and designedly, as equivalent to a direct request to the crowd to follow him. In the present case, he did call for help, and may have been heard by the crowd; he is, therefore, undoubtedly, liable for all the injury sustained.

Judgment affirmed.

Note 1. This is an action formally brought in trespass rather than negligence or strict liability partly because in 1822, American tort law was still in its infancy and trespass provided a direct means to analyze the invaded interests. However, under the later-published Restatement Sections 519 (applying strict liability to ultra-hazardous activities) and 520 (defining ultra-hazardous activities), flying an air balloon would now require imposition of strict liability. Indeed, in the comments to Section 520, aviation is provided as a quintessential example though, as the following dicta make clear, that could always change depending on the calculus of risk and available precautions involved in the activity:

[Aviation in its present state of development is ultrahazardous because the best constructed and maintained aeroplane is so incapable of complete control that flying creates a risk that the plane even though carefully constructed, maintained and operated, may crash to the injury of persons, structures and chattels on the land over which the flight is made’ (emphasis supplied). And in comment ‘g’ a distinction is made between airplanes and automobiles, upon the ground that ‘the use of automobiles has become so common to the great mass of inhabitants of the United States and the residuum of risk which cannot be eliminated by careful driving and maintenance is so small that the driving of ordinary types of automobiles is not regarded as ultra-hazardous. On the other hand, aviation has not as yet become either a common or essential means of transportation. This, coupled with the fact that as yet aeroplanes have not been so perfected as to make them subject to a certainty of control approximating that of which automobiles are capable, and with the serious character of harm which an aeroplane out of control is likely to do to persons, structures or chattels on the land over which it flies make it proper to regard aviation as an ultra-hazardous activity.’”) Wood v. United Air Lines, Inc., 223 N.Y.S.2d 692, 696–97 (Sup. Ct. 1961), aff’d sub nom. Wood v. United Air Lines, 226 N.Y.S.2d 1022 (1962)

Note 2. Commentators and later cases often treat the case as having decided the trespass under strict liability. Do you see why, based on the court’s legal reasoning?

Note 3. The defendant tries to distinguish the defendant’s conduct as “involuntary” and the crowd’s as “voluntary,” but the court rejects this. How and why?

Note 4. Do you think the balloonist knew, or should have known this was an outcome that was possible? Or even likely? How might it affect your thinking one way or another?

Check Your Understanding – Set 7

The Tort of Battery

For a plaintiff to succeed in bringing a claim of battery, they will need to prove the following elements:

  • unauthorized bodily contact by the defendant, which is
  • harmful or offensive in nature, and
  • made with intent by the defendant.

Battery is the most significant intentional tort in terms of protecting individual rights to bodily autonomy and freedom from invasions and harms by others. The quintessential element in a civil battery is that it violated the victim’s consent either by being entirely unauthorized or by exceeding the scope of the consent the victim granted the tortfeasor. The conduct doesn’t have to be “harmful” in the sense of leaving bruises or scars; it may be harmful in other ways because it is traumatizing, or precisely because the physical harms are not as readily discernible.

Note that battery does not necessarily require physical harm: the tort does not protect only against harm to the body; it protects the person’s right to decide what can be done to their body. And it doesn’t protect against accidental bumps or jostles in the ordinary course of moving around in today’s often crowded world. But it does provide protection for a person’s physical autonomy, which is a broader interest than mere protection against bruises or broken bones.

Tortious contact may also qualify as “offensive.” While there is undeniably a subjective element here, a plaintiff cannot simply claim any contact at all was offensive; there are some settled cases as well as state laws that tend to define what makes the contact offensive, such as by stating that the contact was done without authorization and with anger or rudeness. Where there is no lasting or discernible harm so as to make the contact “harmful” but it is provably “offensive,” a court may order “nominal damages.” These are damages in name only, or damages not designed to compensate monetarily but instead to provide an official recognition of the invasion of the plaintiff’s bodily autonomy and to deter future wrongdoing. While one could argue that nominal damages are not worth the costs of litigation, they remain an important way of signaling the boundaries of duties and rights between parties. Sometimes nominal damages may be accompanied by payment of legal fees to the winning party, which can make a significant difference.

The following hypothetical provides an illustration.

Hypothetical: Wrong Ear Surgery Problem

In the early 1900s, an experienced and reputable ear doctor saw a woman complaining of a problem in her right ear. As is customary, he examined both ears. He couldn’t make a full diagnosis of the left ear (“owing to foreign substances therein.” Consider yourselves warned: tort law will often feel a little TMI). The right ear revealed that there was a perforation in the lower portion of the drum membrane and a large polyp in the middle ear which indicated that some bones of the middle ear were probably diseased. The patient was nervous about undergoing general anesthesia, which remains risky even today but was riskier still at that time. After consulting with her family doctor, who agreed to be in the room during the surgery, and after several other consultations with the surgeon who would repair her right ear, she agreed to go forward with the surgery. During the surgery, when he could get a better look at it, the surgeon discovered that the right ear wasn’t in need of the surgery, but the left ear was. The surgeon showed the family doctor, who agreed with this assessment, and then the surgeon went ahead and performed skillful surgery on the left ear. After the surgery, the patient was upset to learn that the surgery had not been done as scheduled on her right ear, and had happened instead on her left ear, which had not been described to her as diseased in any way before that. She complained of new pain and hearing problems apparently not present before the surgery, or at least not serious enough for her to bring them to her doctor then. She sued for battery, but not medical malpractice.

Practice applying the elements of battery (listed above). Can you see why there is a battery here?

Note 1. This hypothetical fact pattern was based on a classic torts case that is still the leading case nationally on consent to unauthorized operations. Mohr v. Williams, 95 Minn. 261 (Minn. 1905). The court ruled in Mohr’s favor, finding a battery and awarding Mohr $14,322.50, a huge sum in that era. The surgeon successfully appealed the damages award, and the new trial produced the considerably lower award of $39 for the plaintiff. (The opinion was later overruled on a narrow issue pertaining to damages in Genzel v. Halvorson, 248 Minn. 527 (1957).)

Note 2. Ms. Mohr’s original damages award, of $14,322.50 would equal $417,295.80 in today’s currency, using a basic tool to account for inflation.[4] Similarly, $39 in U.S. dollars from 1905, when Mohr was decided, is roughly equivalent to $1,136.29 in 2020 U.S. dollars. When adding the expenses of hiring counsel to bring not just one, but two lawsuits, including an appeal of the first, does this seem like a fair outcome? Recall that the court found there was a battery “on the merits” (on the legal question at issue), but also that there did not appear to be any errors or lack of skill by the surgeon.

Note 3. Mohr’s reasoning, included below, helps demonstrate the interests protected by the tort of battery. The court emphasized the law’s commitment to a patient’s right to bodily autonomy, including making medical decisions for themselves:

This particular question is new in this state. At least, no case has been called to our attention wherein it has been discussed or decided, and very few cases are cited from other courts. We have given it very deliberate consideration, and are unable to concur with counsel for defendant in their contention that the consent of plaintiff was unnecessary. The evidence tends to show that, upon the first examination of plaintiff, defendant pronounced the left ear in good condition, and that, at the time plaintiff repaired to the hospital to submit to the operation on her right ear, she was under the impression that no difficulty existed as to the left. In fact, she testified that she had not previously experienced any trouble with that organ. It cannot be doubted that ordinarily the patient must be consulted, and his consent given, before a physician may operate upon him.

It was said in the case of Pratt v. Davis…: ‘Under a free government, at least, the free citizen’s first and greatest right, which underlies all others—the right to the inviolability of his person; in other words, the right to himself—… necessarily forbids a physician or surgeon, however skillful or eminent, who has been asked to examine, diagnose, advise, and prescribe (which are at least necessary first steps in treatment and care), to violate, without permission, the bodily integrity of his patient by a major or capital operation, placing him under an anaesthetic for that purpose, and operating upon him without his consent or knowledge.’

1 Kinkead on Torts, § 375, states the general rule on this subject as follows: ‘The patient must be the final arbiter as to whether he will take his chances with the operation, or take his chances of living without it. Such is the natural right of the individual, which the law recognizes as a legal one, Consent, therefore, of an individual, must be either expressly or impliedly given before a surgeon may have the right to operate.’

There is logic in the principle thus stated, for, in all other trades, professions, or occupations, contracts are entered into by the mutual agreement of the interested parties, and are required to be performed in accordance with their letter and spirit. No reason occurs to us why the same rule should not apply between physician and patient. If the physician advises his patient to submit to a particular operation, and the patient weighs the dangers and risks incident to its performance, and finally consents, he thereby, in effect, enters into a contract authorizing his physician to operate to the extent of the consent given, but no further. It is not, however, contended by defendant that under ordinary circumstances consent is unnecessary, but that, under the particular circumstances of this case, consent was implied; that it was an emergency case, such as to authorize the operation without express consent or permission.

The medical profession has made signal progress in solving the problems of health and disease, and they may justly point with pride to the advancements made in supplementing nature and correcting deformities, and relieving pain and suffering. The physician impliedly contracts that he possesses, and will exercise in the treatment of patients, skill and learning, and that he will exercise reasonable care and exert his best judgment to bring about favorable results. The methods of treatment are committed almost exclusively to his judgment, but we are aware of no rule or principle of law which would extend to him free license respecting surgical operations. Reasonable latitude must, however, be allowed the physician in a particular case; and we would not lay down any rule which would unreasonably interfere with the exercise of his discretion, or prevent him from taking such measures as his judgment dictated for the welfare of the patient in a case of emergency.

Note 4. Ms. Mohr continued to complain of pain in her left ear. Should tort law be the source of her remedy, and if so, why? What does your answer depend on?

Note 5. What sorts of additional facts do you think might have made it reasonable for Dr. Williams to operate on Ms. Mohr’s left ear, even without her consent?

Note 6. Do you see why this is not a medical malpractice case?

Note 7. What do you imagine are the consequences of a ruling like this, in terms of physician behavior and the practices adopted by institutions such as hospitals?

Check Your Understanding – Set 8

Mulloy v. Sang, Alberta Supreme Court, Appellate Division (1935)
(1 W.W.R. 714)

The plaintiff’s claim is for professional fees for an operation involving the amputation of the defendant’s hand which was badly injured in a motor-car accident. The accident took place near the town of Cardston and the defendant was taken to the hospital there. The plaintiff, a physician and surgeon duly qualified to practice, was called to the hospital and the defendant, being a stranger and unacquainted with the plaintiff, asked him to fix up his hand but not to cut it off as he wanted to have it looked after in Lethbridge, his home city. Later on in the operating room the defendant repeated his request that he did not want his hand cut off. The doctor, being more concerned in relieving the suffering of the patient, replied that he would be governed by the conditions found when the anaesthetic had been administered. The defendant said nothing. As the hand was covered by an old piece of cloth and it was necessary to administer an anaesthetic before doing anything, the doctor was not in a position to advise what should be done. On examination he decided an operation was necessary and the hand was amputated.

Dr. Mulloy said the wounds indicated an operation as the condition of the hand was such that delay would mean blood poisoning with no possibility of saving it. In this he was supported by the two other attending physicians. I am, however, not satisfied that the defendant could not have been rushed to Lethbridge where he evidently wished to consult with a physician whom he knew and relied on. Dr. Mulloy took it for granted when the defendant, a Chinaman without much education in English and probably not of any more than average mentality, did not reply or make any objection to his statement that he would be governed by conditions as he found them, that he had full power to go ahead and perform an operation if found necessary. On the other hand, the defendant did not, in my opinion, understand what the doctor meant, and he would most likely have refused to allow the operation if he did. Further, he did not consider it necessary to reply as he had already given explicit instructions.

Under these circumstances I think the plaintiff should have made full explanation and should have endeavoured to get the defendant to consent to an operation, if necessary. It might have been different if the defendant had submitted himself generally to the doctor and had pleaded with him not to perform an operation and the doctor found it necessary to do so afterwards. The defendant’s instructions were precedent and went to the root of the employment. The plaintiff did not do the work he was hired to do and must, in my opinion, fail in his action.

The defendant has counterclaimed for damages in the sum of $400, being $150 for an artificial hand and the balance for loss of wages due to the operation and possibly general damages.

In my opinion the operation was necessary and performed in a highly satisfactory manner. Indeed, there was no suggestion otherwise. The damage and loss and the cost of an artificial hand are the results of the accident and not the unauthorized operation. The defendant, however, is, in my opinion, entitled to damages because of the trespass to the person, which at the same time became trespass ab initio, having in mind the old case of The Six Carpenters (1610) 8 Co. Rep. 146a, 77 E.R. 695. The damages are per se and should be more than nominal. Personally, I in a similar position might have been able to satisfy myself that the operation was necessary, and that I should be glad to pay the reasonable fee charged, but it was not my hand and the defendant will always no doubt feel that he might have saved the hand if he had consulted with a doctor he knew. While I might have been able to forego my rights, I cannot ask the defendant to do so and he is entitled to rely on his rights. There also must have been some shock to him when he found out his hand had been taken off in the manner in which it was, over and above the ordinary shock from an operation. His damages, should, therefore, be substantial but only sufficient to make them substantial rather than nominal. I place the amount at $50.

The action is dismissed with costs and the defendant is entitled to his costs of the counterclaim.

Note 1. Using the same inflation calculator and basic assumptions, the $50 Hop Sang was awarded for his wrongfully removed hand in 1822 produces a value of roughly $921.62 in today’s Canadian dollars.[5] Even if we assumed Sang had been awarded $10,000 in today’s Canadian dollars, do you think that would provide adequate compensation for the injury? Why or why not? Is there a number at which your answer changes?

Note 2. The judicial voice speaks for Sang at several points, imagining what the plaintiff might have thought or felt and distinguishing his own views (“Personally, I in a similar position… but it was not my hand”; “While I might have been able to forego my rights, I cannot ask the defendant to do so”). Why do you think he does not cite to the plaintiff’s own testimony on these issues? What other observations do you have about the way the court describes both the plaintiff’s views and his own about the surgery?

Exam Tip: In the case of both trespass and battery, often the conduct in question qualifies as a violation because it exceeds the scope of consent. For instance, at the end of a dinner party, a guest leaves, but secretly sits in the driveway, just out of sight of the hosts, to sober up before driving. Technically, the social event has ended, and their permission to remain on the host’s land is unclear. Or to take another example, a romantic partner usually allows their partner to hold their hand all the way through the movie but doesn’t want to this time. The attempt to withdraw the hand signals that consent is withdrawn and a second attempt to shake free of the grip, when their partner is still holding onto their hand, makes that desire clear: any remaining contact from that point is technically a battery. Sometimes such instances may be called technical trespass or a technical battery, for which, as noted above, the damages may be nominal or minimal (depending on the precise facts). But the liability will still attach even if the damages are low or non-existent

Part II. Protecting the Mind: Assault and Emotional Harms

The Tort of Assault

Like the tort of battery, the tort of assault must be kept distinct from its criminal counterpart. In the civil context, to bringing a successful claim of assault, the plaintiff will need to prove the following elements:

  • an act, or threat of an action
  • done with intent, that
  • creates in the plaintiff a reasonable apprehension of
  • imminent bodily harm

The scope of the tort has been critiqued for what it recognizes and excludes. The tort was intended to be construed narrowly, a true protection against harm almost immediately upon the victim, and thus many threats that promise harm in the future fall outside the scope of the tort by failing the imminence requirement. Later in the course, you will learn about the prospect of recovering for emotional damages or distress suffered without accompanying physical injuries. For now, the focus is on “fright” or more precisely, on awareness of harm that is imminent and reasonably perceived, not merely imagined.

A Note on Terminology: “Objective” versus “Subjective.” When the law uses the word “reasonable,” it is signaling its use of an objective standard. The legal meanings of “objective” and “subjective” differ from the lay meanings. Ordinarily, subjective means “influenced by personal feelings or tastes; emotional or intuitive.” Objective means not influenced by personal feelings or tastes; impersonal; fact-based; unbiased; nonpartisan; disinterested or even scientific. In law, however, subjective means particularized to the person in question; objective means abstracted to a generalized level: what would the reasonable person have felt or done under such circumstances, rather than what the plaintiff himself actually felt or did. This distinction between objective and subjective states of mind or assessments of conduct will grow in importance throughout your study of tort law. For instance, the intent standard for the intentional torts is subjective: we care what this particular defendant thought or knew when they acted. In assault, the apprehension of imminent bodily harm is objective: would an ordinary reasonable person have been placed in apprehension of harm? This allows tort law to exclude from protection someone overly sensitive who would qualify under a subjective standard (tailored to that individual) but who cannot recover if reasonable people would not share the apprehension under those circumstances.

Most significantly of all, negligence is determined using an objective standard: it uses a general measure based on classes of people (physicians, blind people, adults, elderly or very young people) rather than a particular defendant: what would a reasonable person have done under the circumstances, not what did this defendant believe was reasonable to do under the circumstances? Negligence broadens its scope of liability by asking not just what the plaintiff knew or did but what the reasonable person would have known or would have done. In some instances, a given tort or rule will incorporate both perspectives. For example, in battery, the perspective for whether contact is offensive is first objective: would the reasonable plaintiff find the contact offensive, not whether this plaintiff did? Once that hurdle is cleared, it is also necessary to determine whether the plaintiff did in fact find it offensive. Contact must be objectively considered offensive, at a minimum as well as subjectively, by this plaintiff, considered offensive. The rationale is straightforward: if you’re insensitive and didn’t mind the contact but know others would find it offensive, tort law does not permit you to receive a windfall by suing for something you happened not to mind. Most students find the objective/subjective distinction confusing at first but eventually manageable, partly because it’s a concept they will see over and over in torts and in other classes in their first year and beyond.

Questions for the Readings

As you read the next few cases, please keep the following questions in mind:

  • What interests is tort law seeking to protect? Against what sorts of harms or invasions, and by whom or what? Note where you see courts describing the interests they are protecting (or declining to protect) and put in your own words how the court justifies its decision.
  • What sorts of limits can you identify in the law’s protection of these interests? How does—and how should—the law draw these limits? Why are such limits necessary?
  • In what ways do these legal rulings illustrate, entrench or subvert power dynamics or social status in our society? In what ways could they be amended to create new possibilities?
  • If you do not see either entrenchment or possibilities for change, would any of the cases read differently for you if the age/gender/race/ability/sexual orientation/general identity of one or more of the parties changed? Would the situation strike you as different if a corporation, instead of an individual, were one of the parties?

Background Tort Doctrines: The Common Carrier Doctrine and Vicarious Liability

Two legal doctrines will be helpful to your reading of the next case, Gulf, Colorado & Santa Fe Railway Co. v. Luther.

First, the “common carrier” doctrine historically applied to or companies engaged in the transportation of customers from place to place for compensation (such as public railroads, bus lines, taxi companies, airlines, cruise ship lines, or other similar entities). Tort law has traditionally imposed a higher standard of care on common carriers in order to protect consumers, though this has varied by state and eroded somewhat over time. In New York, for instance, there is no longer a heightened duty; common carriers owe the same duty of “reasonable care” as any other possible tortfeasors. But in the era before meaningful consumer protection laws arose in the first decades of the twentieth century, this heightened duty was an important means of ensuring passengers’ safety and comfort.

Second, under the “vicarious liability” doctrine, an employer is responsible for the tortious conduct of their employees while the employees are working “within the scope of their employment.”
This generally means that employers are liable for their employees while employees are engaged in work-related acts and efforts during work (and thus excludes bad behavior or carelessness outside of work or actuated by personal rather than professional motivations). Vicarious liability is a very important doctrine that you will see again several times in this course, especially with respect to negligence and how to consider the effects of potentially having multiple parties at fault. It is also significant in a number of upper-division courses, so it’s spending time dividing a bit more deeply into its origins, purposes and scope before proceeding.

Introduction to Vicarious Liability

Vicarious liability allows victims of tortious conduct to recover against the employer for the conduct by their employee under certain circumstances. The ability to pursue a case against the employer—who is almost always the party with the “deepest pockets” or greatest capacity to remunerate the plaintiff for their losses—is often of profound benefit to the victim. As this doctrine was developing in 18th-century England, jurists labeled it with the Latin phrase, “respondeat superior,” roughly meaning “let the person in the position of higher power respond” for the wrongdoing of the person in their employment or supervision. The terms used to characterize labor relations were “master” and “servant,” rather than the more modern employer and employee or principal and agent.[6]

Vicarious liability can be taught at many different points in an introduction to tort law, because it plays a role in so many cases, and it is not limited to one kind of tort. One way to understand its effect, however, is to consider it a form of strict liability: the employer is not necessarily at fault but under the doctrine, liability is allocated to the employer anyway, by virtue of the relationship between employer and employee. Note that it is often possible for an employer also to be separately at fault: consider the following scenario.

Pizza Delivery Hypothetical. A delivery driver is the employee of a restaurant and drives negligently—under the influence of hallucinogenic drugs—while delivering one of their pizzas. When the driver causes a car accident that injures someone, the employer would ordinarily be vicariously liable for the victim’s injuries because the driver is an employee acting in the scope of employment. This would be the case even if the restaurant (or its owners) displayed no fault with respect to the accident; in this scenario, assume that the employer isn’t driving or present or directly involved. This is because tort law allocates vicarious liability to the employer for their employees’ actions so long as the actions occur within the scope of employment. To prevail on this claim, a plaintiff would need to prove: a) that the driver was an employee (as opposed to an independent contractor or a driver who made unauthorized use of a company vehicle, such as a thief) and b) that the accident happened during the scope of employment (that is, not outside or after work such as during a lunch break or commuting to and from home, even if driving a corporate vehicle) and c) that there was negligence on the part of the employee, that is, that the employee had a duty of reasonable care that they breached, thus causing the plaintiff’s harm. If negligence analysis fails on some element with respect to the employee’s conduct, the plaintiff will not have a vicarious liability claim against the employer.

However, an alternate (or additional) theory of liability might seek to show that the employer’s hiring, training or retention was negligent. This would not be a vicarious liability claim but a separate claim seeking to prove something else. Perhaps the employer overlooked a prior record of DUI’s that a background check could have brought to light (which might constitute negligent hiring); or failed to make its rules and policies clear (which could constitute negligent training and supervision); or failed to fire the driver after the company discovered he routinely had been delivering their product while stoned (which would constitute negligent retention). Just because a vicarious liability claim is unavailable does not mean that all is lost for a plaintiff, and conversely, merely establishing that a vicarious liability claim might exist is not dispositive of whether a negligence claim is available against the employer. The two are independent of each other and indeed, as this hypothetical shows, the two kinds of claims focus their inquiries on the behavior of different entities.

The most common examples of vicarious liability in tort law arise in negligence but it is possible for employees to commit intentional torts while serving their employer (such as when a bouncer commits a technical battery by escorting a patron out of a nightclub but accidentally harms the patron, for instance). More commonly, employee conduct that is intentionally tortious falls outside the employer’s responsibility. The key, again, is if the employee is acting within or outside “the scope of employment.” The Restatement 2nd of Agency Sec. 237 lays out the factors to consider in determining whether something falls within the scope of employment (and it uses the old language of the common law, “master” and “servant”):

To be within the scope of employment, an act must be of the sort authorized, done within space and time limits fixed by the employment and accompanied by an intention to perform service for the master. See §§ 233-236. If, having in mind either his master’s business and his own, or only his master’s business, the servant departs too far from the space or time limits, he no longer acts within the scope of employment.

These principles are widely applied in tort law with respect to employers and their employees as well as “principals” and their “agents,” which permits a broader scope of potential liability than if the rule were applicable only to employers and employees. There is an entire Restatement for the law of agency, in fact, because the concept of agency plays a significant role in corporate law, partnership law, and employment among others. Vicarious liability does not typically apply to the work of contractors one hires. Put in the form of a rule: a hiring party is not vicariously liable for the torts of their independent contractor. 

Exam tip: a vicarious liability claim always requires an underlying act of tortious conduct. If there is no tort (because the elements are not met or because there is a successful defense), then you need not reach the issue of vicarious liability. Vicarious liability is not a rule that determines liability based on conduct; it’s a rule that allocates liability based on a pre-existing determination of liability (if the tests for vicarious liability are met). Always be sure to identify the underlying tort first, and then consider whether vicarious liability will apply to it. Do not forget to ask, additionally or instead, whether the employer is liable on the basis of their own conduct.

The rule that hiring parties are not liable for the torts of their independent contractors has numerous rationales. Unlike employees, independent contractors are generally thought to stand on their own, financially and legally. They are usually entities with their own insurance (“licensed, bonded and insured” may be a phrase you have heard), and they are likely to possess the desire and capacity to control their own processes. Thus, they have the incentives to optimize for caution and efficiency. They are also deemed (presumptively) to possess skill and training in their field. These factors tend to mean that tort law’s purposes are served by fixing liability for their conduct with the independent contractors themselves. However, courts are concerned that parties might attempt to contract so as to characterize their working relations as hiring party/independent contractor, rather than employer/employee, in an attempt to evade liability. In fact, this points to a larger policy concern. When you take business organizations, you will learn that there is an ongoing concern about strategic behavior, such as deliberate undercapitalization to enable parties to claim they are “judgment proof,” or otherwise structuring entities and business practices to evade the liability that tort law’s principles would ordinarily allocate following traditional rules and doctrines. Corporate law has developed many means of trying to forestall this strategic behavior, and courts may “pierce the corporate veil” to look through whatever structures entities are using in their potentially unlawful behavior. Somewhat similarly, in torts cases, courts may “look through” contracts that treat parties as independent contractors if those appear to be suspicious. The Restatement on Agency provides guidance on how to assess hiring relationships and when to determine that there is, in fact, an employer/employee relationship, whatever the parties might have attempted to create. It does so, in part, by defining the relationship in terms of actual control or the right to control.

Scope of Employment—Restatement (Second) of Agency § 220. Definition Of Servant

(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control.

(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:

(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.

Note: The Restatement of Agency Second has been superseded by the Restatement of Agency Third, which was adopted in 2005 and published in 2006. The case law you read will often reflect a reliance on some version of these factors. Not all of them are necessarily mentioned in each case (and you should not feel the need to apply all 10 of them on an exam question!) Often, courts pick the ones most salient to apply to the facts at bar. This is a good example of how law school requires you to gain substantive knowledge and also to develop judgment about which things you know are most helpful or relevant in a given moment.

Check Your Understanding – Set 9

Gulf, C. & S.F. Ry. Co. v. Luther, Texas Court of Civil Appeals (1905)
(40 Tex.Civ.App. 517)

This suit was brought by appellee to recover damages for an alleged insult to his wife, made by a negro woman while in appellant’s employ as a waitress in attendance on the ladies’ waiting room in the passenger station of appellant at Ft. Worth, Tex., and for alleged nervous prostration of appellee’s wife caused by such insult. The appellant answered by a general denial, and specially that the negro woman was provoked to say what she did by opprobrious epithets addressed to her by appellee’s wife. The trial of the cause resulted in a verdict and judgment against the appellant for $2,500.

Conclusions of Fact.

It is undisputed that appellant owns and operates a line of railroad extending through Hunt county to Ft. Worth, Tex., and another line of road extending from Ft. Worth to Morgan, Bosque county, Tex.; that it is, and was in August, 1903, a common carrier of passengers using said lines of railway for such purpose; that during the month of August of the year aforesaid appellant, in connection with other common carriers of passengers, was in possession, control, and use of a depot building on its roads in Ft. Worth, Tex., for the use and accommodation of its passengers, in which there was a waiting room set aside for the reception of its lady passengers and children;[7] that this room was then entrusted by appellant to a negro woman in its employ, the duties of whose employment were to keep the room clean and in good order for its passengers, attend their wants, and minister to their comfort while awaiting passage on its trains; that in the latter part of June, 1903, the plaintiff, with his wife and four small children, having become passengers over appellant’s said lines of road from a station in Hunt county to Morgan, Tex. (the latter station being their destination), arrived at its depot in Ft. Worth about 7 o’clock in the morning for the purpose of taking one of its trains, which was due at 7:50 o’clock that morning; that plaintiff, being informed that the train was late, left his wife and children in the waiting room for women and children which was in charge of the negro woman in appellant’s employ charged with the duties aforesaid, and went out into the city to attend some matters of business.

The evidence is reasonably sufficient to prove that during plaintiff’s absence from the depot the negro woman, while in the discharge of her duties, became very angry about one of the plaintiff’s little children accidentally spilling from a cup some water on the floor, and when informed by the child’s mother, plaintiff’s wife, the spilling of the water by the child was unintentional, because the child did not know the water was in the cup, the negro woman turned upon Mrs. Luther, and what was said and done had best be told in her language: “When I told the negro woman that the child didn’t know the water was in the cup, she turned on me with an angry look, and said, ‘The child did know the water was in the cup,’ and I told her that the child did not know that the water was in the cup. Then she said to me, ‘If you say the child did not know that the water was in the cup you are a liar.’ I then said to her, ‘I have not been accustomed to be treated this way by colored people.’ She then replied: ‘I am used to your kind. I meet up with them every day.’ During the conversation she was standing right over me, shaking her finger right in my face, and looking vicious and angry. She stood over me about five minutes, and said many things to me that I cannot remember, as I was very much frightened at the time.” The negro woman testified differently as to what occurred, but, as the testimony of Mrs. Luther is corroborated by other circumstances, and as the jury from its verdict evidently believed her narration of the occurrence, we find it is true that Mrs. Luther, in consequence of the abuse and ill-treatment by the negro, was greatly frightened, humiliated, worried, and distressed, causing her nervous prostration, physical pain, and mental anguish, to plaintiff’s damage in the amount found by the verdict.

Conclusions of Law.

The first assignment of error[8] complains of the court’s overruling defendant’s amended motion for a new trial, upon the ground that the verdict is contrary to the law and evidence and is excessive, in that it fails to show that the sickness and physical pain suffered by Mrs. Luther were proximately caused by the negligence of defendant. The outrageous conduct and language of the negro woman, whether denominated negligence or not, were, because done by her as appellant’s servant and while in the discharge of the duties of her employment, acts for which the appellant as a common carrier of passengers is responsible and liable to plaintiff for all the damages proximately flowing therefrom. That plaintiff’s wife suffered insult and indignity at the hands of appellant’s servant, and was treated disrespectfully and indecorously by her under such circumstances as to occasion mental suffering, humiliation, wounded pride, and disgrace, there can be little doubt. At least the jury might have so found from the evidence before them. And if it should be conceded that she suffered no physical injury or sickness in consequence, still the appellant would be liable for the consequences of such wrongs done to a passenger.

In considering the duties of carriers to their passengers, Hutchinson on Carriers, §§ 595, 596, states the rule as follows: “The passenger is entitled, not only to every protection which can be used by the carrier for his personal safety, but also to respectful treatment from him and his servants. From the moment the relation commences, as has been seen, the passenger is in a great measure under the protection of the carrier, even from the violent conduct of other passengers, or of strangers. … The carrier’s obligation is to carry the passenger safely and properly, and to treat him respectfully; and, if he entrusts the performance of this duty to his servants, the law holds him responsible for the manner in which they execute the trust. The law seems to be now well settled that the carrier is obliged to protect his passenger from violence and insult from whatsoever source arising. He is not regarded as an insurer of his passengers’ safety against every possible source of danger, but he is bound to use all such reasonable precaution as human judgment and foresight are capable of to make his passengers’ journey safe and comfortable. He must not only protect his passengers against the violence and insults of strangers and co-passengers, but, a fortiori, against the violence and insults of his own servants. If his duty to the passenger is not performed, if this protection is not furnished, but, on the contrary, the passenger is assaulted and insulted through the negligence or the willful misconduct of the carrier’s servant, the carrier is necessarily responsible. And it seems to us it would be a cause of profound regret if the law were otherwise. The carrier selects his own servants, and can discharge them when he pleases, and it is but reasonable that he should be responsible for the manner in which they execute their trust.”

Thompson on Negligence, § 3186, after stating the above rule, adds: “The carrier is liable absolutely, as an insurer, for the protection of the passenger against assaults and insults of his own servants, because he contracts to carry the passenger safely and give him decent treatment en route. Hence, an unlawful assault or insult to a passenger by his servant is a violation of his contract by the very person whom he has employed to carry it out. The intendment of the law is that he contracts absolutely to protect his passenger against the misconduct of his own servants whom he employs to execute the contract of carriage. The duty of the carrier to protect the passenger during the transit from the assaults and insults of his own servants being a duty of an absolute nature, the usual distinctions which attend the doctrine of respondeat superior cut little figure in the case.”

In Elliott on Railroads, § 2579, treating upon this subject, it is said: “It is not merely a question of negligence in such cases, nor is it strictly a question depending upon the scope of the servants’ particular employment. It is a question of the absolute duty of a railroad company to its passengers as long as the relation subsists, and a breach of that duty on its part, whether caused by the willful act of an employe or not. A carrier is bound to discharge the implied duty, arising out of its contract and imposed by law, that its passengers shall be protected from injury by its servants and shall not be willfully insulted and harmed by them; and, if it commits the discharge of this duty to an employe, it may well be held to do so at its peril, notwithstanding the exercise of care on its part in selecting the servants. Either the company or the passenger must take the risk of infirmities of temper, maliciousness, and misconduct of the employes whom the company has placed upon the train and to whom it has committed the discharge of its duty to protect and look after the safety of its passengers. A passenger has no control over them, and the company alone has the power to select and remove them. It is therefore but just to make the company, rather than the passengers, take this risk, and to hold it responsible. This leads to the conclusion that a railroad company is liable for an injury willfully inflicted upon a passenger by an employe while engaged in performing a duty which the carrier owes to the passenger, or in executing the contract, although the company is guilty of no negligence *522 in selecting them and such act was not strictly within the scope of their employment or line of their duty, in the sense that it was done for the carrier or arose out of the performance of their particular duty.” See also, Traction Co. v. Lane (Tenn.Sup.) 53 S.W. 558.

This rule is strictly observed in this state. In Dillingham v. Russell, 73 Tex. 51, it is said: “The rule,” referring to the principle that the master is not ordinarily liable for an injury resulting from the willful and malicious acts of his agent not done in the course of his employment, “however, cannot be applied in a case in which the master by contract, express or implied, is under obligation to protect the injured person from the servant’s wrongful act as well as his own. Where a duty is thus imposed on the master, for whose acts, whether of omission or commission, resulting in injury to the person entitled to have the duty performed, the master must be held as fully responsible and liable to make at least actual compensation as though the act were his own personal act. In such cases, if the servant does what the master could not suffer to be done without violation of the particular duty resting upon him, or if the servant omits to do that requisite to the full discharge of the master’s incumbent duty, then the master must be held responsible for the servant’s wrongful or malicious act or omission, for otherwise it would result that a master might relieve himself from obligation to perform a duty fixed by contract, or otherwise, by the employment of servants to conduct the business to which the duty attaches. The master’s obligation cannot thus be avoided, and whether the servant’s act violative of the master’s duty be willful or malicious is a matter of no importance in determining the liability and obligation of the master to make actual compensation to the injured person. It has been steadily held to be the duty of carriers of passengers to protect them, in so far as this can be done by the exercise of a high degree of care, from the violence and insults of other passengers and strangers, and to protect them from the violence and insults of the carrier’s own servants, and the inquiry whether this duty arises from contract or from the nature of the employment becomes unimportant, except that the duty goes with the carrier’s contract, however made, whereby the relation of carrier and passenger is established.” [cc]

The case of Texas & Pacific Ry. Co. v. Jones (Tex.Civ.App.) 39 S.W. 124, is one where the plaintiff’s wife, who was in defendant’s depot for the purpose of taking passage on one of defendant’s trains, was insulted by the wife of the ticket agent, but suffered no physical injury in consequence, and the question presented was whether the husband could recover damages for her mental suffering. It was held that it was the duty of appellant’s station agent to protect her from insult and abuse from all persons while she was at its station waiting to become a passenger on its train, and she had the right to recover for a breach of such duty whether she received physical injuries or not. In the case of *523 Houston & Texas Central Ry. Co. v. Perkins (Tex.Civ.App.) 52 S.W. 124, where the plaintiff and his wife were passengers in a Pullman sleeper attached to one of defendant’s trains, and, at night, the defendant permitted drunken men to enter the coach where plaintiff and his wife had retired, allowing the drunkards to remain and use profane and indecent language, which caused the wife mental anguish and loss of rest, this court held, in an opinion by Justice Fly, that the husband was entitled to recover damages though his wife sustained or suffered no physical injuries. See, also, M., K. & T. Ry. Co. v. Ball (Tex.Civ.App.) 61 S.W. 327. The case of I. & G.N. Ry. v. Henderson (Tex.Civ.App.) 82 S.W. 1065, is one where a negro passenger, with the knowledge of the conductor, was vilified and made to dance for the amusement of the passengers by several drunken rowdies, who had entered the train; and, though the evidence failed to show that he suffered any physical injuries, a verdict against the railway company for $1,000 damages on account of his humiliation, mortification, and fright was affirmed on appeal. See, also, Quinn v. L. & N. Ry. Co. (Ky.) 32 S.W. 742.

We have quoted the foregoing elementary principles and cited cases falling under them for the purpose of demonstrating that the liability of a common carrier for insults by its servants causing humiliation, a sense of disgrace, mental anguish, or fear in a passenger is independent of physical injury or bodily harm; and that such liability does not depend upon the negligence of the master in employing the servant, or the scope of his authority, if the insult is given while employed about his master’s business.

It being established by the decisions of this state that mental suffering is an element of damages, where it results from a breach of the carrier’s contract or duty, though no physical injury may have been sustained, and, as the evidence in this case shows plaintiff’s wife suffered mental anguish from the consequence of such breach, which was also a tort, it was for the jury to determine the quantum of damage. In such a case the law does not undertake to, nor can it, exactly measure his damages, but it authorizes the jury to consider the injured feelings of the party, the indignity endured, the humiliation, wounded pride, mental suffering, and the like, and to allow such sum as it may determine is right. When this is done, unless the verdict is palpably wrong, after it has been approved by the trial court, it is not the province of an appellate tribunal to disturb it.

What could be more humiliating to a frail, delicate, sensitive woman, with a babe at her breast and her other little ones around her, than to be pounced upon, vilified, and traduced by a negro servant in a railway depot, where her relation as passenger to its owner entitles her to be treated with respect and kindness? Is it any wonder to those who can contemplate the effect of such an outrage that the poor woman for months afterwards, as she testified, could not close her eyes without that angry, threatening negro arising before her and murdering sleep? In G., C. & S.F. Ry. Co. v. Trott, 86 Tex. 412, the Supreme Court says: “That a physical personal injury may be produced through emotion of the mind there can be no doubt. The fact that it is more difficult to produce such an injury through the operation of the mind *524 than by direct physical means affords no sufficient grounds for refusing compensation in an action at law, where the injury is intentionally or negligently inflicted. It may be more difficult to prove the connection between the alleged cause of injury, but if it be proved, and the injury be the proximate result of the cause, we cannot say that a recovery should not be had.” It was for the jury to say from the evidence whether plaintiff’s wife, in consequence of the outrage inflicted upon her by appellant’s servant, suffered from nervous prostration and sickness, and there being evidence to support its finding, we deemed it our duty to make our conclusions of fact conform thereto, and, in view of the evidence and the principles of law above enunciated, to conclude that the verdict is not excessive. This disposes of the first and second assignments of error.

[Editor’s note: The third assignment of error is omitted here.]

The fourth assignment complains that the court erred in not sustaining defendant’s objection to that part of the answer of Mrs. Luther *525 to the sixth interrogatory which is as follows: “The little girl May was very much frightened, and said ‘Mamma, let’s get out of here’”—because such part of the answer was immaterial, irrelevant, and hearsay. *** However, we have no doubt that this part of the answer was admissible in evidence as part of the res gestae,[9] and for that reason distinguishable from hearsay. For the appearance and exclamation of the child was when the negro was standing over and abusing her mother, and were indicative of the woman’s action and language, and tended to show her violent and outrageous conduct toward plaintiff’s wife. [cc]

The testimony complained of in the fifth, sixth, and seventh assignments was admissible in evidence under the rule that, where the bodily and mental feelings of an individual are material to be proved, the usual expressions of such feelings, made at the time in question, are original evidence. If they are the natural language of the affection, whether of body or mind, they furnish satisfactory evidence, and often the only proof of its existence. And whether they were real or feigned is for the jury to determine. [cc] And a witness may testify that another person seemed to be sick, suffering, nervous, or in good or bad health. [cc]

While the rule, expressed in the court’s charge, that “railway companies are not insurers of the safety and comfort of their passengers, but are required to exercise that high degree of care that very cautious and prudent persons would have exercised under the same or similar circumstances, and a failure to do so is negligence,” may not be strictly applicable to a case of this character, its being given in the charge [to the jury] could not have possibly prejudiced the defendant, since in a case like this the common carrier is absolutely liable for injuries unlawfully and wrongfully inflicted by his servant on a passenger.

There is no error in the judgment, and it is affirmed.

Note 1. What is the tortious harm here?

Note 2. What do you note about how the court describes the dynamic between the two women?

Note 3. What is the purpose of making an employer vicariously liable for the kind of dynamic described here? What effect will a ruling like this one have in the workplace?

Note 4. The principal case mentions a prior case, International & G.N.R. Co. v. Henderson, in which “a negro passenger, with the knowledge of the conductor, was vilified and made to dance for the amusement of the passengers by several drunken rowdies, who had entered the train.” The paragraphs below, excerpted from International & G.N.R. Co, provide further details on the experience of Mr. Henderson, the African-American plaintiff targeted by drunken passengers.

International & G.N.R. Co. v. Henderson, Court of Civil Appeals of Texas (1904)
(82 S.W. 1065)

[***] [A]ppellee was a passenger on one of appellant’s passenger trains from San Antonio to Austin, and further alleged: That during the time that said passenger train was on its way to Austin from San Antonio, and while plaintiff was on the train as a passenger, seated in the car set apart for the use of colored passengers (plaintiff being a colored man), the said car was invaded by several intoxicated or partially intoxicated white men, to plaintiff unknown, who made use of said car set apart for the use of colored passengers as a smoking car; said unknown white men were rude, boisterous, vulgar, and profane, cursing and swearing in the presence of plaintiff and several colored women, among whom was the wife of the plaintiff. The plaintiff remonstrated with the white men who had invaded the car set apart to the colored passengers, and was then abused, cursed, and vilified in the most vulgar and indecent language, and was marched through the train at the point of pistols held in the hands of the white men, and compelled to get off said train at the first station through which the plaintiff passed. That he caught the last car on the train after being compelled to get off, and once more seated himself as a passenger on the passenger train of defendant, but was again seen by the crowd of white men, as hereinbefore alleged, and was again cursed and vilified by said crowd of men, and compelled to march through the train at the point of pistols, and made to dance for the amusement of fellow passengers, searched, and again compelled to get off the train at the first station through which the passenger train passed; and then the plaintiff appealed to the conductor of said train for protection, informing the conductor that he was a passenger, and entitled to protection as a passenger. The conductor informed the plaintiff that he could do nothing for him, and for him (the plaintiff) to get on the blind baggage car. That he then again got upon the train, but the same crowd of white men compelled him, at the point of pistols, to again walk to and fro through the train, and when the train reached the station of Buda the plaintiff was compelled to get off and leave said train at the point of pistols and in fear of his life, and was not allowed by said crowd of white men to again get upon the train. That the plaintiff appealed to the conductor and the other trainmen in control of the train, but he was told that they could do nothing for him. That, after being compelled to get off the train at Buda, he walked to Austin, a distance of 12 miles, arriving next morning, as it was night when plaintiff was put off and required to leave the train at Buda. The petition alleges that the facts as stated were known to the conductor and the servants in charge of the train. And the petition concludes with the statement that he has been greatly damaged, in being placed in fear of his life and great bodily harm, and that he suffered great anguish in body and mind on account of the mistreatment as herein alleged, and sues for the sum of $5,000. There is abundant evidence in the record sustaining these averments.

[***] The evidence in the record, and the case as made by the pleadings, is not one wholly of mental anguish, but it shows an unjustifiable assault made by drunken passengers upon the person of the appellee at a time and under circumstances when he should have been afforded protection by the conductor and the servants in charge of the train. They knew and were informed of the outrageous and unjustifiable assault that was being committed, and there is no palliation or excuse for the conduct of the railway company in not resorting to some means to afford protection to the plaintiff from the premeditated, unjustifiable, and outrageous assault that was being committed upon him, the progress of which, as the evidence shows, continued for some time, within the knowledge of the conductor. On the points of law raised in the assignments noticed, the authorities in this state are clearly against the contention of the appellant. Texas & Pacific Railway Co. v. Armstrong, 93 Tex. 34; Missouri Pacific Railway Co. v. Kaiser, 82 Tex. 144; M., K. & T. Ry. Co. v. Tarwater (Tex.Civ.App.) 75 S.W. 937; International & Great Northern Railroad Co. v. Anchondi (Tex.Civ.App.) 68 S.W. 744.

The fifth assignment of error complains that the verdict of the jury is excessive, outrageous, and unconscionable, and that the court erred in overruling defendant’s motion for new trial, because the damages awarded to the plaintiff are out of all proportion to the inconvenience and humiliation alleged to have been suffered by him. In view of the evidence in the record, it is unnecessary to discuss the question raised by this assignment. The plaintiff was clearly entitled to the amount recovered [$1,000], if not more.

Note 5. Having read the account of Mr. Henderson’s experience, consider how it compares with the experience of Mrs. Luther in the waiting room, recalling that both incidents were alleged to have resulted in emotional distress. What do you observe about how the court in Gulf v. Luther cites to this case, International & G.N.R. Co. v. Henderson? What does it suggest about a system built on stare decisis?

Professor Kim Lane Scheppele describes how a legal system ceases to feel legitimate when it discredits or misrepresents those whom it purposes to represent and regulate: “Those whose stories are believed have the power to create fact; those whose stories are not believed live in a legally sanctioned ‘reality’ that does not match their perceptions. …How are people to think about the law when their stories, the ones they have lived and believed, are rejected by courts, only to be replaced by other versions with different legal results? …[T]here are few things more disempowering in law than having one’s own self-believed story rejected, when rules of law (however fair in the abstract) are applied to facts that are not one’s own, when legal judgments proceed from a description of one’s own world that one does not recognize…” Foreword: Telling Stories, 87 Mich. L. Rev. 2073, 2079–80 (1989) What should courts do to guard against citation practices like those illustrated in the Luther and Henderson cases?

Check Your Understanding – Set 10

Ruiz v. Bertolotti, Supreme Court, Nassau County (1962)
(NY 37 Misc.2d 1067)

On this motion to dismiss the complaint for legal insufficiency pursuant to Rule 106 subdivision 4, Rules of Civil Practice, much of defendant’s argument is directed to the plausibility of the plaintiffs’ story, and whether the acts complained of ever occurred since the complaint is based only upon information and belief. We are not now, however, concerned with the question of proof since on a motion of this type the allegations must be deemed true.

In sum the complaint states that the plaintiffs, who are Puerto Ricans, contracted to purchase a house in a residential section of Massapequa from one Farber, a builder; that the defendant learned of this and he, acting in concert with others, personally called on Farber and expressed anger at ‘colored persons’ moving into the neighborhood, and threatened bodily harm to him, to plaintiffs and to plaintiffs’ children, if the sale were consummated; that these threats were made with malice and for the purpose of communication to plaintiffs, in order to frighten them into agreeing to rescind the contract of sale; that these threats were communicated to plaintiffs by Farber and that plaintiffs were put in fear of their personal safety and that of their children as a result of which they entered into an agreement rescinding the contract of sale. It is further alleged that, as a result of these threats, both plaintiffs suffered distress, humiliation and emotional shock and were rendered sick and nervous, and that in addition plaintiff Manuel Ruiz suffered pecuniary damage in that he had to search for another dwelling and absent himself from his business.

Much of the discussion in the moving brief, in the court’s view, is beside the point. This does not purport to be an action under the new anti-discrimination laws, nor in defamation, nor for assault, so there is no point in showing its deficiencies in this regard. [***]

This is an action for a wilful and malicious tort, the very purpose of which was to so frighten and distress the plaintiffs that they would surrender their legal right to buy a house where they pleased. These were not mere idle words of disapproval but a specific threat of bodily harm. The ultimate purpose of keeping ‘colored people’ out of the neighborhood could not be accomplished unless the immediate objective of putting them in fear for their safety first succeeded.

In principle this case is not too different from Halio v. Lurie, 15 A.D.2d 62, 222 N.Y.S.2d 759, where a malicious, sarcastic letter, taunting the *1069 plaintiff with her unsuccessful efforts to marry the defendant was held to be actionable without a showing of special damage. Battalla v. State, 10 N.Y.2d 237, is analogous also. There the Court of Appeals overruled the long established rule of Mitchell v. Rochester Ry. Co., 151 N.Y. 107, that there could be no recovery for negligently causing fright, distress and physical damage, unless there had been an impact and allowed a complaint to stand although no physical contact was involved.

Deliberate and malevolent conduct, albeit confined to words, is at least as serious a matter, requiring the protection of the law to even a greater degree.  (Scheman v. Schlein, 35 Misc.2d 581.)

The fact that the threat was uttered to an intermediary for communication to plaintiffs does not, in any way, detract from its viciousness and illegality. An ‘organizer’ who goes into a barber shop and tells an employee to tell the employer to raise the price of haircuts or his shop will be dynamited, would get short shrift with the defense that he did not speak to the employer personally.

For these reasons I believe that defendant must come forward and stand on his position that the episode did not take place and not that he is not liable even if it did happen, which is his position on this motion.

Motion denied.

Note 1. The court attempts to sort the defendant’s conduct into one of tort law’s existing categories: “This does not purport to be an action under the new anti-discrimination laws, nor in defamation, nor for assault, so there is no point in showing its deficiencies in this regard.” What do you make of this effort, and how does it square with the outcome in this case?

Note 2. Having now had a brief introduction to trespass, battery, and assault—three of the core intentional torts—what do you observe about the way they were applied in the cases you read, whom they served or disserved, and how they differed from negligence law?

Check your Understanding – Set 11

  1. Editor’s note: “Trespass” here is a reference to an older form of legal action involving a direct injury, and it does not necessarily or only refer to trespass in the ordinary sense in which you are probably familiar with it, meaning unauthorized entry onto someone else’s land. “Lies” here means “exists as a viable legal action.”
  2. Editor’s note: This now is a reference to trespass in the ordinary sense of unauthorized entry on someone else’s land, which the law calls a “close.” 87 C.J.S. TRESPASS § 66. Here, the “close” is a reference to the property owned by the plaintiff, Swan.
  3. A Black’s Law Dictionary—or Google—will help you cut through the Latin terms you’ll encounter in law school. If an unfamiliar term doesn’t obstruct your understanding, you might just keep reading without looking it up, and only look it up after you’ve read the case so that it doesn’t break your flow. However, I would strongly encourage you to look up a Latin phrase (or other term) if you’re still not sure what it means after reading the case. Here, “causa causans” means the primary or originating cause, the cause of the things (or even the causes) that follows that first cause. It’s used to trace damages back to an original source of liability.
  4. https://www.officialdata.org/us/inflation/1905?amount=14322.50 Using a more complicated set of inputs, it could be considered $2,690,000 in relative income using 2019’s currency.
  5. https://www.officialdata.org/canada/inflation/1935?amount=50
  6. The underlying legal reasoning for the doctrine is illustrated in this case: “If the servants of A with his cart run against another cart, wherein is a pipe of wine, and overturn the cart and spoil the wine, an action lieth against A. So where a carter’s servant runs his cart over a boy, action lies against the master for the damage done by this negligence: and so it is if a smith’s man pricks a horse in shoeing, the master is liable. For whoever employs another, is answerable for him, and undertakes for his care to all that make use of him. The act of a servant is the act of his master, where he acts by authority of the master.” Jones v Hart, 90 E.R. 1255 (Court of King’s Bench) 1703.
  7. White women and children would wait in this room to be protected from the hustle and bustle of the railroad station, apparently. Here, the husband has deposited his wife and children while he goes back out on the town on some sort of errand as they all await the train. At least in this railroad station, an African-American woman was employed to keep the waiting room clean and orderly.
  8. The “assignments of error” mentioned here are the grounds on which the case is being appealed, namely, that the court below made errors that this appellate court should address (in the ways in which the appellant is seeking relief).
  9. Editor’s note: “res gestae” means the things or circumstances relating to case at hand.

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