8 Revisiting Assault and Battery

Assault: Elements

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

Battery: Elements 

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

I de S et ux. v. W de S, At the Assizes (1348)

I de S and M, his wife, complain of W de S concerning this, that the said W, in the year, etc., with force and arms did make an assault upon the said M de S and beat her. And W pleaded not guilty. And it was found by the verdict of the inquest that the said W came at night to the house of the said I and sought to buy of his wine, but the door of the tavern was shut and he beat upon the door with a hatchet which he had in his hand and the wife of the plaintiff put her head out of the window and commanded him to stop, and he saw and he struck with the hatchet but did not hit the woman. Whereupon the inquest said that it seemed to them that there was no trespass since no harm was done. THORPE, C.J. There is harm done and a trespass for which he shall recover damages since he made an assault upon the woman as has been found, although he did no other harm. Wherefore tax the damages, etc. And they taxed the damages at half a mark. Thorpe awarded that they should recover their damages, etc., and that the other should be taken. And so note that for an assault a man shall recover damages, etc.

Note 1. Prior to this case, the law was uncertain on the question of whether an action could succeed if the defendant’s actions hadn’t caused physical harm (what we now know as a battery). The tavern owner and his wife lost before “the inquest” (the equivalent of the lower court) and appealed to the courts of assize (England’s traveling courts, which were organized into six judicial circuits). There the plaintiffs won. The case is credited with being the origins of the tort of assault.

Note 2. In some instances, such as this case, an assault may lie when an attempted battery has failed to make contact with the plaintiff. However, there does not need to be an attempted battery for a plaintiff to make out a successful claim. Revisit the elements of assault and battery, below. Can you imagine instances in which there is a clear case of assault and just as clearly no case of battery?

Reynolds v. MacFarlane, Utah Appellate Court (2014)
(322 P.3d 755)

John Reynolds appeals from the trial court’s dismissal of his intentional tort claims against Bret MacFarlane. We affirm in part, reverse in part, and remand to the trial court.

On August 5, 2009, MacFarlane walked into the break room at his workplace where his coworker, Reynolds, was standing in front of the microwave oven. Reynolds was holding a ten dollar bill somewhat loosely in his hand. Reynolds was unaware of MacFarlane’s presence. MacFarlane approached Reynolds from behind and, without touching Reynolds, quickly snatched the ten dollar bill. Reynolds immediately spun around and faced MacFarlane. MacFarlane then stated, “That was too easy,” and returned the ten dollar bill to Reynolds. As MacFarlane began to walk away, Reynolds struck MacFarlane, splitting his lip. MacFarlane asked why he hit him. Reynolds replied, “You pissed me off.” Shortly after this incident, the two interacted with a larger group of employees outside, and the employees joked around and completed their break. The two men were together at an offsite employee lunch some days later, and on multiple occasions after the incident Reynolds sought out and voluntarily spoke with MacFarlane in MacFarlane’s work area.

Nevertheless, the incident was reported to the parties’ supervisor. During the ensuing investigation, Reynolds reported to the supervisor that the incident was “nothing” and that any contact between the parties was accidental. Reynolds was ultimately punished with a one-day suspension without pay for striking another employee. Thereafter, Reynolds received medical treatment for anxiety, which Reynolds explained to his physician had resulted from difficulties at work.

Nearly one year later, Reynolds filed a complaint against MacFarlane, alleging assault and intentional infliction of emotional distress. At a bench trial, the parties stipulated to the dismissal of Reynolds’s claim for intentional infliction of emotional distress, but Reynolds moved to amend his complaint to include a claim for battery. The court granted Reynolds’s motion. After hearing the evidence, the trial court found MacFarlane “to be more credible in that [his] testimony was more consistent and was corroborated by multiple parties.” Accordingly, the court based its findings of fact largely on MacFarlane’s testimony. The trial court concluded that Reynolds had not met his burden of proof to show that MacFarlane had committed an assault or a battery against him and then dismissed the case with prejudice. Reynolds appeals.

I. Assault

Reynolds challenges the trial court’s conclusion that he failed to prove assault. As an appellate court, we give great deference to the trial court’s role as a fact finder and will review its findings of fact only for clear error. [c] We review the trial court’s legal conclusions for correctness. [c] *758 To the extent that Reynolds challenges the trial court’s findings of fact, he merely reargues the evidence in favor of his position and does not adequately marshal the evidence supporting the trial court’s findings as required by our rules of appellate procedure. See Utah R.App. P. 24(a)(9) ( “A party challenging a fact finding must first marshal all record evidence that supports the challenged finding.”). Because of this failure to marshal, we accept the facts as articulated by the trial court. [c]

Under Utah law, “[a]n assault is an act ‘(a) … intending to cause a harmful or offensive contact with the person of the other … or an imminent apprehension of such a contact’ by which ‘(b) … the other is … put in such imminent apprehension.’” Tiede v. State, 915 P.2d 500, 503 n. 3 (Utah 1996) (omissions in original) (quoting Restatement (Second) of Torts § 21 (1965)). The trial court concluded that Reynolds could not prevail on his assault claim for three reasons. First, the trial court determined that Reynolds failed to establish that he was in imminent apprehension of harmful or offensive contact because he was not aware of MacFarlane’s presence until after he spun around to find out who had taken his ten dollar bill. Second, the trial court ruled that even though MacFarlane intended to take the ten dollar bill, MacFarlane did not intend to cause imminent apprehension of harmful contact in Reynolds by doing so. Third, the trial court ruled that Reynolds suffered no injury or damages as a result of MacFarlane’s actions. Reynolds challenges each of these conclusions. We need address only Reynolds’s first challenge because it is dispositive to our conclusion that the trial court correctly determined that Reynolds failed to prove that an assault occurred.

Reynolds concedes that a plaintiff complaining of assault “must be aware of the defendant’s act.” See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 10, at 44 (5th ed.1984) (“Since the interest involved is the mental one of apprehension of contact, it should follow that the plaintiff must be aware of the threat of contact, and that it is not an assault to aim a gun at one who is unaware of it.”). In Reynolds’s view, this requirement is satisfied in this case because he “was keenly aware of what happened to him” “the moment the money was snatched from his hand.”

However, a plaintiff complaining of assault cannot be in apprehension of harmful or offensive contact unless he is aware of such contact before the threat of the contact is accomplished or has dissipated. “The plaintiff’s subjective recognition or apprehension that [he] is about to be touched in an impermissible way is at the core of [an] assault claim.” 1 Dan B. Dobbs et al., The Law of Torts § 38, at 97 (2d ed.2011). As section 22 of the Restatement explains, “An attempt to inflict a harmful or offensive contact or to cause an apprehension of such contact does not make the actor liable for an assault if the other does not become aware of the attempt before it is terminated.” Restatement (Second) of Torts § 22 (1965); see also id. § 22 cmt. a (“[T]he defendant is not liable if his efforts to inflict the bodily contact have been abandoned or frustrated before the other is aware of them, since in such case the other is not put in the required apprehension.”). Reynolds has directed us to no authority to the contrary.

As a result, we conclude that the trial court correctly ruled that Reynolds was not in imminent apprehension of harmful or offensive contact because he was not aware of MacFarlane’s presence until after MacFarlane took the ten dollar bill from Reynolds’s hand. … Accordingly, Reynolds did not prove that MacFarlane committed an assault against him, and the trial court correctly dismissed his assault claim.

II. Battery

Reynolds also challenges the trial court’s determination that he failed to establish the elements of a battery. We review *759 the trial court’s legal conclusions for correctness. [c] Utah has adopted the Restatement (Second) of Torts to define the elements of the intentional tort of battery. Wagner v. State, 2005 UT 54, ¶ 16, 122 P.3d 599. Consequently, an actor is liable for battery if “‘(a) he acts intending to cause a harmful or offensive contact with the person of the other … or an imminent apprehension of such a contact, and (b) a harmful contact with the person of the other directly or indirectly results.’” Id. (quoting Restatement (Second) of Torts § 13 (1965)).

In this case, the trial court found that MacFarlane did not touch Reynolds when he grabbed the ten dollar bill from Reynolds’s hand. Because “MacFarlane never touched or came into contact with Reynolds,” the trial court concluded that Reynolds did not meet his burden of proof to show that a harmful contact resulted from MacFarlane’s action.^[1] Reynolds asserts that the trial court’s conclusion is erroneous because MacFarlane’s grabbing of an object—the ten dollar bill—from his hand was sufficient contact with his person to constitute a battery.

For the intentional tort of battery, harmful or offensive contact “includes all physical contacts that the individual either expressly communicates are unwanted, or those contacts to which no reasonable person would consent.” Id. ¶ 51. But “it is not necessary that the plaintiff’s actual body be disturbed.” Restatement (Second) of Torts § 18 cmt. c (1965). Rather, “[p]rotection of the interest in freedom from intentional and unpermitted contacts with the plaintiff’s person extends to any part of the body, or to anything which is attached to it and practically identified with it.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 9, at 39 (5th ed.1984) (footnote omitted). “Thus, if all other requisites of a battery against the plaintiff are satisfied, contact with the plaintiff’s clothing, or with a cane, a paper, or any other object held in the plaintiff’s hand, will be sufficient” to support a battery claim because the “interest in the integrity of [a] person includes all those things which are in contact or connected with the person.” Id. § 9, at 39–40 (footnotes omitted); *** Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627, 629 (Tex.1967) (“The intentional snatching of an object from one’s hand is as clearly an offensive invasion of his person as would be an actual contact with the body.”). But see Workman v. United Fixtures Co., 116 F.Supp.2d 885, 896–97 (W.D.Mich.2000) (concluding that even if the defendant removed a paper from the plaintiff’s hand, “nothing in the record suggests that [the defendant’s] alleged actions amounted to an offensive contact battery”). We consider the above authorities as persuasive and not inconsistent with our supreme court’s battery analysis.

In this case, MacFarlane’s act of taking the ten dollar bill held loosely in Reynolds’s hand was sufficient contact to constitute the contact element of battery, see Wagner, 2005 UT 54, ¶ 16, 122 P.3d 599, notwithstanding the fact that MacFarlane did not touch Reynolds’s body. When held in his hand, the ten dollar bill was connected to Reynolds such that when MacFarlane snatched the bill from Reynolds, MacFarlane’s act resulted in offensive contact with Reynolds’s person. The intent element of battery was also met in this case because *760 the trial court found that MacFarlane intended to take the bill from Reynolds’s hand when he acted. See id. ¶ 29 (“[T]he only intent required to commit a battery is the intent to make a contact, not an intent to harm, injure, or offend through that contact.”). Accordingly, we conclude that the trial court erred in dismissing Reynolds’s battery claim because the court’s factual findings establish both elements of the claim.

The trial court determined that Reynolds suffered no damages as a result of the August 5, 2009 incident. The Utah Supreme Court has explained that “[a] harmful or offensive contact is simply one to which the recipient of the contact has not consented either directly or by implication.” Id. ¶ 51. “[H]armful or offensive contact is not limited to that which is medically injurious or perpetrated with the intent to cause some form of psychological or physical injury.” Id. (emphasis added). Instead, harmful or offensive contact “includes all physical contacts that the individual either expressly communicates are unwanted, or those contacts to which no reasonable person would consent.” Id. Moreover, “[c]ommon law battery does not require that the nonconsensual contact be injurious. Rather, proof of an unauthorized invasion of the plaintiff’s person, even if harmless, entitles him to at least nominal damages.” Lounsbury v. Capel, 836 P.2d 188, 192–93 (Utah Ct.App.1992) (emphasis added); see also id. at 196 (“[A plaintiff] need not prove injury to sustain his battery claim; if he proves no more than the ‘offense’ of the nonconsensual touching, he is entitled to nominal damages.”); Keeton et al. § 9, at 41 (“[T]he defendant is liable not only for contacts which do actual physical harm, but also for those relatively trivial ones which are merely offensive and insulting.”). “Damages for pain, suffering, ‘psychological problems’ and the like, however, may … be recovered only to the extent that [the plaintiff] proves they were a proximate result” of the nonconsensual touching. Lounsbury, 836 P.2d at 196.

Here, the trial court found that “no injury resulted to Reynolds as a direct and proximate cause of MacFarlane’s actions.” Thus, the trial court ruled that Reynolds’s claimed damages—the one-day suspension and his medical issues following the break-room incident with MacFarlane—were not proximately caused by MacFarlane’s act. Reynolds has not effectively challenged this ruling on appeal. However, because we have concluded that MacFarlane committed a battery, Reynolds is entitled to nominal damages. See id. at 192–93 (“[U]nauthorized invasion of the plaintiff’s person, even if harmless, entitles him to at least nominal damages.”). Accordingly, we remand to the trial court for an award of nominal damages to Reynolds for battery.

III. Attorney Fees

¶ 18 MacFarlane requests an award of attorney fees incurred on appeal, pursuant to rule 33 of the Utah Rules of Appellate Procedure. MacFarlane argues that Reynolds’s appeal in this matter is frivolous and asserts that he is therefore entitled to attorney fees.

¶ 19 “[I]f the court determines that a[n] … appeal taken under these rules is either frivolous or for delay, it shall award just damages, which may include … reasonable attorney fees, to the prevailing party.” Utah R.App. P. 33(a). A frivolous appeal “is one that is not grounded in fact, not warranted by existing law, or not based on a good faith argument to extend, modify, or reverse existing law.” Id. R. 33(b). Because we reverse the trial court’s ruling on one of the issues raised, Reynolds’s appeal is clearly not frivolous. We therefore decline to award MacFarlane the attorney fees that he has incurred on appeal.

In sum, the trial court correctly concluded that Reynolds did not establish the elements of assault, because Reynolds was not aware of MacFarlane’s imminent contact. We affirm the dismissal of Reynolds’s assault claim, reverse the dismissal of Reynolds’s battery claim, and remand to the trial court for judgment in favor of Reynolds on his battery claim and for an award of nominal damages.

Note 1. Given that Reynolds was awarded only nominal damages, do you imagine it was still worth the lawsuit? Why or why not?

Note 2. Is it an assault to point a toy gun at someone’s head? How about a real gun that is unloaded? How about a loaded gun that one brandishes in the air near another person’s head, carelessly, saying, “don’t worry, I’m not going to shoot you”? Ground your answers in the elements of assault.

Note 3. An early case held that it was correct to find an assault had been committed when a defendant aimed an unloaded gun at the plaintiff and pulled the trigger twice, frightening the victim who was unaware the gun was unloaded. The court explained its ruling thus:

One of the most important objects to be attained by the enactment of laws and the institutions of civilized society is, each of us shall feel secure against unlawful assaults. Without such security society loses most of its value. Peace and order and domestic happiness, inexpressibly more precious than mere forms of government, cannot be enjoyed without the sense of perfect security. We have a right to live in society without being put in fear of personal harm. But it must be a reasonable fear of which we complain. And it surely is not unreasonable for a person to entertain a fear of personal injury, when a pistol is pointed at him in a threatening manner, when, for aught he knows, it may be loaded, and may occasion his immediate death. The business of the world could not be carried on with comfort, if such things could be done with impunity. Beach v. Hancock, 27 N.H. 223, 229–30 (1853).

Note 4. Who should decide whether a person’s fear, or “anticipation of imminent bodily harm” is reasonable? Is this an objective or subjective standard, descriptively and which should it be, normatively, in your view?

Note 5. Consider Dean Nelson’s earlier application of the “thin skull plaintiff” doctrine to women and people of color. Are there normative justifications for tailoring harms to account of societal imbalances, such as sexism, racism, and other structural inequalities? How about arguments against doing so because of the value of not unsettling the law? Is there a way to be anti-racist, or progressive in other respects, without such revisiting standards and doctrines? What does that look like and what are the values, and systemic costs, of any such approach?

Note 6. Reynolds cited the next case, Fisher, for the rule that offensive contact with something touching the plaintiff’s body can be a battery, even without the defendant’s touching the body directly. Consider the work the rule does in this context.

Fisher v. Carrousel Motor Hotel, Inc. Texas Supreme Court (1967)
(424 S.W. 2d 627)

This is a suit for actual and exemplary damages growing out of an alleged assault and battery. The plaintiff Fisher was a mathematician with the Data Processing Division of the Manned Spacecraft Center, an agency of the National Aeronautics and Space Agency, commonly called NASA, near Houston. The defendants were the Carrousel Motor Hotel, Inc., located in Houston, the Brass Ring Club, which is located in the Carrousel, and Robert W. Flynn, who as an employee of the Carrousel was the manager of the Brass Ring Club. Flynn died before the trial, and the suit proceeded as to the Carrousel and the Brass Ring. Trial was to a jury which found for the plaintiff Fisher. The trial court rendered judgment for the defendants notwithstanding the verdict. The Court of Civil Appeals affirmed. 414 S.W.2d 774. The questions before this Court are whether there was evidence that an actionable battery was committed, and, if so, whether the two corporate defendants must respond in exemplary as well as actual damages for the malicious conduct of Flynn.

The plaintiff Fisher had been invited by Ampex Corporation and Defense Electronics to a one day’s meeting regarding telemetry equipment at the Carrousel. The invitation included a luncheon. The guests were asked to reply by telephone whether they could attend the luncheon, and Fisher called in his acceptance. After the morning session, the group of 25 or 30 guests adjourned to the Brass Ring Club for lunch. The luncheon was buffet style, and Fisher stood in line with others and just ahead of a graduate student of Rice University who testified at the trial. As Fisher was about to be served, he was approached by Flynn, who snatched the plate from Fisher’s hand and shouted that he, a Negro, could not be *629 served in the club. Fisher testified that he was not actually touched, and did not testify that he suffered fear or apprehension of physical injury; but he did testify that he was highly embarrassed and hurt by Flynn’s conduct in the presence of his associates.

The jury found that Flynn ‘forceably dispossessed plaintiff of his dinner plate’ and ‘shouted in a loud and offensive manner’ that Fisher could not be served there, thus subjecting Fisher to humiliation and indignity. It was stipulated that Flynn was an employee of the Carrousel Hotel and, as such, managed the Brass Ring Club. The jury also found that Flynn acted maliciously and awarded Fisher $400 actual damages for his humiliation and indignity and $500 exemplary damages for Flynn’s malicious conduct.

The Court of Civil Appeals held that there was no assault because there was no physical contact and no evidence of fear or apprehension of physical contact. However, it has long been settled that there can be a battery without an assault, and that actual physical contact is not necessary to constitute a battery, so long as there is contact with clothing or an object closely identified with the body. 1 Harper & James, The Law of Torts 216 (1956); Restatement of Torts 2d, ss 18 and 19. In Prosser, Law of Torts 32 (3d Ed. 1964), it is said:

‘The interest in freedom from intentional and unpermitted contacts with the plaintiff’s person is protected by an action for the tort commonly called battery. The protection extends to any part of the body, or to anything which is attached to it and practically identified with it. Thus contact with the plaintiff’s clothing, or with a cane, a paper, or any other object held in his hand will be sufficient; * * * The plaintiff’s interest in the integrity of his person includes all those things which are in contact or connected with it.’

Under the facts of this case, we have no difficulty in holding that the intentional grabbing of plaintiff’s plate constituted a battery. The intentional snatching of an object from one’s hand is as clearly an offensive invasion of his person as would be an actual contact with the body. ‘To constitute an assault and battery, it is not necessary to touch the plaintiff’s body or even his clothing; knocking or snatching anything from plaintiff’s hand or touching anything connected with his person, when, done is an offensive manner, is sufficient.’ Morgan v. Loyacomo, 190 Miss. 656 (1941).

Such holding is not unique to the jurisprudence of this State. In S. H. Kress & Co. v. Brashier, 50 S.W.2d 922 (Tex.Civ.App.1932, no writ), the defendant was held to have committed ‘an assault or trespass upon the person’ by snatching a book from the plaintiff’s hand. The jury findings in that case were that the defendant ‘dispossessed plaintiff of the book’ and caused her to suffer ‘humiliation and indignity.’

The rationale for holding an offensive contact with such an object to be a battery is explained in 1 Restatement of Torts 2d s 18 (Comment p. 31) as follows:

Since the essence of the plaintiff’s grievance consists in the offense to the dignity involved in the unpermitted and intentional invasion of the inviolability of his person and not in any physical harm done to his body, it is not necessary that the plaintiff’s actual body be disturbed. Unpermitted and intentional contacts with anything so connected with the body as to be customarily regarded as part of the other’s person and therefore as partaking of its inviolability is actionable as an offensive contact with his person. There are some things such as clothing or a cane or, indeed, anything directly grasped by the hand which are so intimately connected with one’s body as to be universally regarded as part of the person.’

*630 We hold, therefore, that the forceful dispossession of plaintiff Fisher’s plate in an offensive manner was sufficient to constitute a battery, and the trial court erred in granting judgment notwithstanding the verdict on the issue of actual damages.

In Harned v. E-Z Finance Co., 151 Tex. 641 (1953), this Court refused to adopt the ‘new tort’ of intentional interference with peace of mind which permits recovery for mental suffering in the absence of resulting physical injury or an assault and battery. This cause of action has long been advocated by respectable writers and legal scholars. See, for example, Prosser, Insult and Outrage, 44 Cal.L.Rev. 40 (1956); Wade, Tort Liability for Abusive and Insulting Language, 4 Vand.L.Rev. 63 (1950); Prosser, Intentional Infliction of Mental Suffering: A New York, 37 Mich.L.Rev. 874 (1939); 1 Restatement of Torts 2d s 46(1).

However, it is not necessary to adopt such a cause of action in order to sustain the verdict of the jury in this case. The Harned case recognized the well established rule that mental suffering is compensable in suits for willful torts ‘which are recognized as torts and actionable independently and separately from mental suffering or other injury.’ 254 S.W.2d at 85. Damages for mental suffering are recoverable without the necessity for showing actual physical injury in a case of willful battery because the basis of that action is the unpermitted and intentional invasion of the plaintiff’s person and not the actual harm done to the plaintiff’s body. Restatement of Torts 2d s 18. Personal indignity is the essence of an action for battery; and consequently the defendant is liable not only for contacts which do actual physical harm, but also for those which are offensive and insulting. Prosser, supra; Wilson v. Orr, 210 Ala. 93 (1923). We hold, therefore, that plaintiff was entitled to actual damages for mental suffering due to the willful battery, even in the absence of any physical injury.

*** [Editor’s note: the discussion of damages and the corporations’ vicarious liability for the actions of Flynn are omitted for the sake of brevity.]

After the jury verdict in this case, counsel for the plaintiff moved that the trial court disregard the answer to issue number eight (no authorization or approval of Flynn’s conduct on the occasion in question) and for judgment upon the verdict. The trial court erred in overruling that motion and in entering judgment for the defendants notwithstanding the verdict; and the Court of Civil Appeals erred in affirming that judgment.

The judgments of the courts below are reversed, and judgment is here rendered for the plaintiff for $900 with interest from the date of the trial court’s judgment, and for costs of this suit.

Note 1. The rule expressed in Fisher, that rudely or angrily removing a plate from someone’s hands is a battery reflects what some courts have referred to as the doctrine of extended personality. If something is touching one’s body—such as a purse, backpack, or headphones, or if one’s body is closely connected to or interwoven with something (such as a jockey riding a horse or a person sitting on a stool or swinging on a swing), then interference with the thing or animal can constitute battery so long as the other elements are met. What facts in Fisher would you change to make this action fail to be a battery, descriptively? How about normatively, if the answer differs?

Note 2. The court in Fisher declined to find IIED, perhaps because it could find a technical battery had happened, and it could justify awarding damages in connection with the mistreatment by an employee. What do you think of the use of battery as a tort here? Is it inappropriate (in potentially twisting the concept of battery to offer redress on these facts)? If you think it is appropriate it is sufficient (in actually redressing the victim’s harms)? Should an action have been allowed for IIED?

Note 3. The general rule is that tort law does not permit recovery for mere insults or rudeness; to do so would turn the courts into over-burdened policers of manner and feelings. But in some cases, the reluctance to allow a claim for IIED may seem more or less satisfying, given the facts. See Dawson v. Zayre Dep’t Stores, 346 Pa. Super. 357, 360 (1985) (stating “we believe that this conduct merely constitutes insulting namecalling from which no recovery may be had” and distinguishing Fisher and other cases, in which service was denied or customers asked to leave the store from a case in which an employee called a customer an extremely harmful racial epithet when in an argument over a lay-away ticket). Richard Delgado, Words that Wound: A Tort Action for Racial Insults, Epithets and Name-Calling, 17 Harv. C.R.-C.L. L. Rev. 133 (1982) argued forcefully in favor of the creation of a special tort to address hateful or racist speech but his calls have gone unheeded). What benefits would flow from the creation of such a tort? What costs or challenges would it create?