Expanding Tort Liability to Protect Other’s “Unusually Sensitive Sense” of Personal Dignity

Part one of two
By Ronald Rotunda
Jul 6, 2015

Every lawyer knows about of the American Law Institute (“ALI”), an elite private group wielding tremendous influence. Few nonlawyers know that is exists.

What is the ALI?

The ALI members include each Justice of the U.S. Supreme Court, the Chief Judges of the U.S. Court of Appeals, and Chief Judges of the highest state courts, deans of all law schools that are members of the Association of American Law Schools, and a limited number of law professors and distinguished private practitioners. They are the elite of the elite. Its founding members in 1923 included Chief Justice and former President William Howard Taft, future Chief Justice Charles Evans Hughes, former Secretary of State Elihu Root. Judge Benjamin N. Cardozo (later Justice) and Judge Learned Hand were among its early leaders

The ALI drafts “Restatements” of the law, efforts to codify common law, except the ALI does more than codify — it shifts the law in the direction that its members want that law to go. Every first year law student studies the Restatement of Torts. Courts routinely rely on the ALI Restatements as authority. The ALI also drafts Model Codes and courts routinely cite those codes to support their rulings even if the legislature has not adopted them. For example, over 7,000 state and federal cases have cited the ALI’s Model Penal Code.

Re-Definition of the Term “Assault and Battery”

The ALI had its annual meeting in late May, and it approved (in a very close vote) significant changes to its new section of the Restatement of Torts dealing with assault and battery. It defines “battery” as any contact that “offends a reasonable sense of personal dignity” or — this is the new addition — “contact that is highly offensive to the other’s unusually sensitive sense of personal dignity and the actor knows that the contact will be highly offensive to the other.” (Emphasis added).

This act of touching must be “offensive” to the person touched, to exclude the occasional bumps we experience waiting in the line for the bus or taking the subway. The law always has measured “offense” based on the views of the reasonable person. That way, if the lawsuit is frivolous, the judge can throw it out without putting the defendant through the expense of a trial. The new ALI proposal “restates” the law to provide that there is a personal injury tort if the defendant knows that the bump will be offensive to the other person even if that person’s sense of personal dignity is “unusually sensitive.”

Dramatic Implications from the Re-Definition

Let’s say that a patient tells the hospital, “I don’t want to be touched by Jews. I don’t want any Jewish doctors, nurses, or janitors to touch me.” An earlier draft of this new Restatement said, “if the patient had demanded that she not be touched by a nurse or doctor of a particular race or religion, the hospital and medical staff have no obligation to respect that preference” because it violates “public policy.” The draft that the ALI approved on May 20 eliminates the italicized words. The intent is clear. If the hospital does not obey the religious bigot, the hospital is liable to pay damages. Battery is an intentional tort, so often insurance does not cover it.

Because many of these issues are jury questions, the plaintiff can impose on the defendant the burden of a trial, the expense of discovery, and the risk that a jury will impose punitive damages — because punitive damages often accompany intentional torts. If the trial takes place in a community with a significant Muslim population, that will increase the defendant’s perceived risks. All that encourages settlement and furthers religious bigotry.

For those who say, it is wrong for someone to intentionally flout another’s unusual sensitivities — sure; it’s “wrong” in the sense that we should all be polite. However, that does not mean that the state should impose liability under tort law.

Assume that John Doe, waiting at a bus stop taps the woman in front of him to ask directions. She is wearing the Muslim veil and she tells Doe that she finds his touching offensive. Doe knows (or a jury may later decide that he knows) that many Muslim women do not want men to touch them but he taps her on the shoulder anyway. The new Restatement suggests that Doe is liable. If the woman touches Doe, she’s not liable, because Doe has a different religion or no religion at all. The ALI proposal increases tort liability in a way that favors some religions over others, and that violates the Establishment Clause.