Expanding Definition Of Tort Liability: The Impact on The Future of Tort Law

Part two of two
By Ronald Rotunda
Jul 8, 2015

In my earlier post I discussed how the ALI's significant changes to its new section of the Restatement of Torts dealing with assault and battery could change tort liability. To recap, the ALI defines “battery” as any contact that “offends areasonablesense of personal dignity”or— this is the new addition — “contact that is highly offensive to the other’sunusually sensitive senseof personal dignity and the actor knows that the contact will be highly offensive to the other.” (Emphasis added). How does that look in practice?

"Sensitivity" to Cigar Smoke?

The ALI will expand tort liability in a way that invites employees to avoid the restrictions of worker compensation laws. Those laws provide a schedule of damages for injured employers, who do not have to prove fault. Employees can avoid those limitations by suing for an intentional tort. Consider this case, which the ALI discusses in its new draft for assault and battery, McCracken v. Sloan, 252 S.E.2d 250, 252 (N.C. Ct. App. 1979).

In McCracken, an employee sued his supervisor because the employee walked into the supervisor’s office and the supervisor was smoking a cigar. There was no law or company policy against the supervisor smoking in his own office. The North Carolina court said, “Smelling smoke from a cigar being smoked by a person in his own office” is ordinarily “an innocuous and generally permitted contact.” There was “no competent evidence that the plaintiff suffered a physical illness from smelling the cigar smoke,” and so the court dismissed the complaint. The ALI now says, “This case would very likely result in liability today.”

Major Expansion in Definition

What happens under the ALI regime if an individual sits on a seat in the subway car? As the car gets crowded, he announces, “I have an unusually sensitive sense of personal dignity,” and I am very upset if anyone sits next to me.” Does that mean that our unusually sensitive person has space to spread out while others have to stand in the subway car? If others ignore him, do they risk tort liability?

The ALI published its first Restatement of Torts in 1934. Until now, it has never embraced the concept that an individual with an “abnormally acute sense of personal dignity” could make another liable for battery. No court has ever adopted this concept. However, the ALI is very influential and its approval carries weight. My own online search, and ALI reports shows that, for many years, the U.S. Supreme Court has cited the ALI over once a month on average. The Supreme Court of Arizona has ruled that the Arizona courts will follow the Restatements of the Law in all decisions in which Arizona law is silent, i.e., no contrary statutes or prior Arizona law. E.g., Odekirk v. Austin, 366 P.2d 80, 81 (1961). The American Virgin Islands explicitly provides by statute that, in the absence of local laws to the contrary, the Restatements of Law are the law in Virgin Island Courts. 1 Virgin Islands Code, Ann., § 4

State and federal courts have cited ALI Restatements and its similar law reform projects about 200,000 times. The Restatement of Torts has been particularly influential. In 1964, the ALI adopted §402A of its Torts Restatement establishing liability of sellers to consumers for defective products regardless of fault. At the time, only 16 states had taken this position. Now, §402A is the law everywhere.

No court ever has adopted the rule that an individual with an “abnormally acute sense of personal dignity” could make another liable for battery. Nor has the American Law Institute . . . until now. With the ALI’s recent approval of its new draft of “Intentional Torts to Persons,” we are seeing the future of the law.