Zittrain Torts Casebook
  • 1 I. Assault and Battery: Reconciling Harm with Culpability

    What’s a tort? It’s a wrong that a court is prepared to recognize, usually in the form of ordering the transfer of money (“damages”) from the wrongdoer to the wronged. The court is usually alerted to wrong by the filing of a lawsuit: anyone can walk through the courthouse doors and, subject to the limits explored in civil procedure, call someone else (or, if a company, something) to account.

    The first section of our course deals with that group of torts known as intentional. We’ll review the spectrum of intent that marks the sometimes-fuzzy boundaries among wrongs that are done intentionally, those done merely “negligently,” and others in between, and also have a chance to think about what kinds of damages should be on the table once a wrong is established. What happens when an act that’s only a little bit wrongful, even while intentional, results in unexpectedly large harm?

    We’ll also discuss the sources that courts turn to in order to answer such questions. Rarely, in tort cases, are those sources the ones laypeople expect: statutes passed by legislatures. Without statutes to guide them, what are courts left with?

    • 1.1 I.A. Righting (or Punishing) the Wrong

      • 1.1.1 Vosburg v. Putney--"The Schoolboy Kicker"

        Should defendants be liable for unforeseeable injuries?

        1

        VOSBURG, by guardian ad litem, Respondent, vs. PUTNEY, by guardian ad litem, Appellant.

        Supreme Court of Wisconsin
        80 Wis. 523; 50 N.W. 403

        October 26, Argued.
        November 17, 1891, Decided.

        2

        APPEAL from the Circuit Court for Waukesha County.

        3

        The action was brought to recover damages for an assault and battery, alleged to have been committed by the defendant upon the plaintiff on February 20, 1889. The answer is a general denial. At the date of the alleged assault the plaintiff was a little more than fourteen years of age, and the defendant a little less than twelve years of age.

        4

        The injury complained of was caused by a kick inflicted by defendant upon the leg of the plaintiff, a little below the knee. The transaction occurred in a school-room in Waukesha, during school hours, both parties being pupils in the school. A former trial of the cause resulted in a verdict and judgment for the plaintiff for $2,800. The defendant appealed from such judgment to this court, and the same was reversed for error, and a new trial awarded. 78 Wis. 84.

        5

        The case has been again tried in the circuit court, and the trial resulted in a verdict for plaintiff for $2,500. The facts of the case, as they appeared on both trials, are sufficiently stated in the opinion by Mr. Justice ORTON on the former appeal, and require no repetition.

        6

        On the last trial the jury found a special verdict, as follows: " (1) Had the plaintiff during the month of January, 1889, received an injury just above the knee, which became inflamed, and produced pus? Answer. Yes. (2) Had such injury on the 20th day of February, 1889, nearly healed at the point of the injury ? A. Yes. (3) Was the plaintiff, before said 20th of February, lame, as the result of such injury? A. No. (4) Had the tibia in the plaintiff's right leg become inflamed or diseased to some extent before he received the blow or kick from the defendant? A. No. (5) What was the exciting cause of the injury to the plaintiff's leg? A. Kick. (6) Did the defendant, in touching the plaintiff with his foot, intend to do him any harm? A. No. (7) What sum do you. Assess the damages of the plaintiff? A. $2,500."

        7

        The defendant moved for judgment in his favor on the verdict, and also for a new trial. The plaintiff moved for judgment on the verdict in his favor. The motions of defendant were overruled, and that of the plaintiff granted. Thereupon judgment for plaintiff for $2,500 damages and costs of suit was duly entered. The defendant appeals from the judgment.

        8

        T. W. Haight, attorney, and J. V. Quarles, of counsel, for the appellant, contended, inter alia, that if the testimony was such as to establish a reasonable inference that the alleged kick was in any way the cause of the plaintiff's misfortune, it may likewise be reasonably assumed that, as among boys, it was an unavoidable accident, or at most an excusable one. Harvey v. Dunlap, Hill & Denio Supp. 195; Bullock v. Babcock, 3 Wend. 391; Webster's Dict. ACCIDENT; Barry v. U. 8. Mut. Acc. Ass'n, 23 Fed. Rep. 712; U. S. Mut. Ace. Ass'n v. Barry, 131 U. S. 100; Brown v. Kendall, 6 Cnsh. 292. Negligence is the real ground of possible recovery in a case like this. Conway v. Reed, 66 Mo. 346, 27 Am. Rep. 354. And the rule governing liability as well as damages should be the same as in cases of negligence. Crandall v. Goodrich Transp. Co. 16 Fed. Rep. 75; McGrew v. Stone, 53 Pa. St. 441-2; Putnam v. B. (& 8. A. R. Co. 55 N. Y. 118; Servatius v. PicJiel, 34 Wis. 299; Stewart v. Ripon, 38 id. 590; Ingram v. Rankin, 47 id. 409; Harvey v. Dunlap, Hill & Denio Supp. 195, cited in 51 N. Y. 488; Paxton v. Boyer, 67 111. 132; Morris v. Piatt, 32 Conn. 75; Phillips v. Dickerson, 85 111. 11; Marvin v. ?., M. & St. P. R. Co. 79 Wis. 140. The question of contributory negligence, therefore, on the part of the plaintiff or of his parents, should have been submitted as requested. Setting aside the question of contributory negligence, however, " in order to warrant a finding that negligence, or an act not amounting to a wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the wrongful act and that it ought to have been foreseen in the light of attending circumstances " Atkinson v Goodrich Transp. Co 60 Wis 141; Mil. & St P. R. Co v. Kellog, 94 U S 469; 2 Thomp. Neg. 1083. That the bone inflammation suffered by plaintiff was not a natural or probable, or ordinary result of defendant’s act is conceded, and therefore a nonsuit should have been granted. Vedder v. Hildreth Wis 427; Cooley Torts 62, 69; Addison Torts (Wood's ed.), 1, 5, and note; Bigelow, Torts, 312; Miles v. A., M. & O. R. Co. Receivers, 4 Hughes, 172; Scheffer v. Railroad Co. 105 U. S. 249; Moak's Underhill Torts, 16; Stewart v. Ripon, 38 Wis. 590; Sharp v. Powell, L. R. 7 C. P. 258. There being no evil intent or its equivalent shown, there should be no recovery. 2 Greenl. Ev. sees. 82-85; 2 Addison, Torts, sec. 790; Cooley, Torts, 162; Coward v. Baddeley, 4 Hurl. & N. 478; Christopherson v. Bare, 11 Q. B. 473; Hoffman v. Eppers, 41 Wis. 251; Krall v. Lull, 49 id. 405; Alderson v. Waistell, 1 Car. & K. 358; Brown v. Kendall, 6 Cush. 292; Morris v. Piatt, 32 Conn. 75-86. The motive and purpose being innocent and harmless, the law implies a license for the defendant's act. Hooker v. ?. M. & St. P. R. Co. 76 Wis. 546; Adam v. Freeman, 12 Johns. 408; Cooley, Torts, 303, 163; Thayer v. Jarvis, 44 Wis. 390.

        9

        For the respondent there was a brief by Ryan & Merton, and oral argument by T. E Ryan. They argued, among other things, that where an infant commits a wrong to another, whether wilfully or negligently, or by the direct application of force, or the indirect results of force, the law, while regarding his youth or inexperience and making due allowance for absence of evil intent or capacity for evil intent, proceeds upon the reason that damages directly resulting to another from the wrong he has committed ought to be recompensed. Cooley, Torts, 98, 99; Hutching v. Engel, 17 Wis. 230; School Dist. v. Bragdon, 23 N. H. 507; Zouch v. Parsons, 3 Burr. 1802; Jennings v. Rundall, 8 Term R.335; Conway v. Reed, 66 Mo. 346; Oliver v. McClellan 21 Ala. 675; Barham v. Tuberville, 1 Swan (Tenn.), 437; Bullock v. Babcock, 3 Wend. 391; Peterson v. Haffner, 59 Ind. 130 Conklini) Thompson, 29 Barb. 218; Neal v. Gillett. 23 Conn 437 The party who commits a trespass or other wrongful act is liable for all the direct injury resulting from such act although such resulting injury could not have been contemp'lated as the probable result 3 Suth. Dam. 714; McNamara v. Clintonville, 62 Wis 207; Oliver v. La Valle, 36 id 592; Stewart v. Ripon 38 id. 584; Brown v C., M & St. P. R. Co. 54 id. 362; Ehrgott v Mayor, 96 N.Y. 280. It being shown that the defendant knowingly and consciously kicked the plaintiff and injured him, the nonsuit was properly denied.

        11

        LYON, J. Several errors are assigned, only three of which will be considered.

        12

        1. The jury having found that the defendant, in touching the plaintiff with his foot, did not intend to do him any harm, counsel for defendant maintain that the plaintiff has no cause of action, and that defendant's motion for judgment on the special verdict should have been granted. In support of this proposition counsel quote from 2 Greenl. Ev. § 83, the rule that " the intention to do harm is of the essence of an assault." Such is the rule, no doubt, in actions or prosecutions for mere assaults. But this is an action to recover damages for an alleged assault and battery. In such case the rule is correctly stated, in many of the authorities cited by counsel, that plaintiff must show either that the intention was unlawful, or that the defendant is in fault. If the intended act is unlawful, the inten-tion to commit it must necessarily be unlawful. Hence, as applied to this case, if the kicking of the plaintiff by the defendant was an unlawful act, the intention of defendant to kick him was also unlawful.

        13

        Had the parties been upon the play-grounds of the school, engaged in the usual boyish sports, the defendant being free from malice, wantonness, or negligence, and intending no harm to plaintiff in what he did, we should hesitate to hold the act of the defendant unlawful, or that he could be held liable in this action. Some consideration is due to the implied license of the play-grounds. But it appears that the injury was inflicted in the school, after it had been called to order by the teacher, and after the regular exercises of the school had commenced. Under these circumstances, no implied license to do the act complained of existed, and such act was a violation of the order and decorum of the school, and necessarily unlawful. Hence we are of the opinion that, under the evidence and verdict, the action may be sustained.

        14

        2. The plaintiff testified, as a witness in his own behalf, as to the circumstances of the alleged injury inflicted upon him by the defendant, and also in regard to the wound he received in January, near the same knee, mentioned in the special verdict. The defendant claimed that such wound was the proximate cause of the injury to plaintiff's leg, in that it produced a diseased condition of the bone, which disease was in active progress when he received the kick and that such kick did nothing more than to change the location, and perhaps somewhat hasten the progress, of the disease. The testimony of Dr. Bacon, a witness for plaintiff (who was plaintiff's attending physician), elicited on cross- examination tends to some extent to establish such claim. Dr. Bacon first saw the injured leg on February 25th, and Dr. Philler also one of the plaintiff's witnesses, first saw it March 8th. Dr Philler was called as a witness after the examination of the plaintiff and Dr Bacon. On his direct examination he testified as follows: " I heard the testimony of Andrew Vosburg in regard to how he received the kick, February 20th, from his playmate. I heard read the testimony of Miss More and heard where he said he received this kick on that day " (Miss More had already testified that she was the teacher of the school and saw defendant standing in the aisle by his seat and' kicking across the aisle, hitting the plaintiff.) The following question was then propounded to Dr Philler: “After hearing that testimony, and what you know fo the case of the boy, seeing it on the 8th day of March, what, in your opinion, was the exciting cause that produced the inflammation that you saw in that boy’s leg on that day?” An objection to this question was overruled, and the witness answered: “The exciting cause was the injury received at that day by the kick on the shin-bone.”

        15

        It will be observed that the above question to Dr. Philler calls for his opinion as a medical expert, based in part upon the testimony of the plaintiff, as to what was the proximate cause of the injury to plaintiff's leg. The plaintiff testified to two wounds upon his leg, either of which might have been such proximate cause. Without taking both of these wounds into consideration, the expert could give no intelligent or reliable opinion as to which of them caused the injury complained of; yet, in the hypothetical question propounded to him, one of these probable causes was excluded from the consideration of the witness and he was required to give his opinion upon an imperfect and insufficient hypothesis,—one which excluded from his consideration a material fact essential to an intelligent opinion. A consideration by the witness of the wound received by the plaintiff in January being thus prevented, the witness had but one fact upon which to base his opinion, to wit, the fact that defendant kicked plaintiff on the shin-bone. Based, as it necessarilv was, on that fact alone, the opinion of Dr Philler that the kick caused the injury was inevitable, when, had the proper hypothesis been submitted to him, his opinion might have been different. The answer of Dr. Philler to the hypothetical question put to him may have had, probably did have, a controlling influence with the jury, for they found by their verdict that his opinion was correct.

        16

        Surely there can be no rule of evidence which will tolerate a hypothetical question to an expert, calling for his opinion in a matter vital to the case, which excludes from his consideration facts already proved by a witness upon whose testimony such hypothetical question is based, when a consideration of such facts by the expert is absolutely essential to enable him to form an intelligent opinion concerning such matter. The objection to the question put to Philler should have been sustained. The error in permitting the witness to answer the question is material, and necessarily fatal to the judgment.

        17

        3. Certain questions were proposed on behalf of defendant to be submitted to the jury, founded upon the theory that only such damages could be recovered as the defendant might reasonably be supposed to have contemplated as likely to result from his kicking the plaintiff. The court refused to submit such questions to the jury. The ruling was correct. The rule of damages in actions for torts was held in Brown v. C, M. & St. P. P. Co. 54 Wis. 342, to be that the wrong-doer is liable for all injuries resulting directly from the wrongful act whether they could or could not have been foreseen by him. The chief justice and the writer of this opinion dissented from the judgment in that case, chiefly because we were of the opinion that the complaint stated a cause of action ex contractu and not ex delicto, and hence that a different rule of damages—the rule here contended for—was applicable. We did not question that the rule in actions for tort "was correctly stated. That case rules this on the question of damages.

        18

        The remaining errors assigned are upon the rulings of the court on objections to testimony. These rulings are not very likely to be repeated on another trial, and are not of sufficient importance to require a review of them on this appeal.

        19

        By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded for a new trial.

      • 1.1.2 Alcorn v. Mitchell--"The Angry Spitter"

        [Refer to this case's description in playlist I.B. for more facts.]

        1
        63 Ill. 553
        Supreme Court of Illinois.
        WILLIAM E. ALCORN
        v.
        ANDREW J. MITCHELL.

        June Term, 1872.

        2

        APPEAL from the Circuit Court of Marion county; the Hon. SILAS L. BRYAN, Judge, presiding.

        3

        Messrs. SHAW, HAYWARD & SMITH, for the appellant.

        4

        Messrs. WILSON & HUTCHINSON, and Mr. JONATHAN PALMER, for the appellee.

        5

        Opinion

        6

        Mr. JUSTICE SHELDON delivered the opinion of the Court:

        7

        The ground mainly relied on for the reversal of the judgment in this case is, that the damages are excessive, being $1000.

        8

        The case presented is this: There was a trial of an action of trespass between the parties, wherein the appellee was defendant, in the circuit court of Jasper county. At the close of the trial the court adjourned, and, immediately upon the adjournment, in the court room, in the presence of a large number of persons, the appellant deliberately spat in the face of the appellee.

        9

        So long as damages are allowable in any civil case, by way of punishment or for the sake of example, the present, of all cases, would seem to be a most fit one for the award of such damages.

        10

        The act in question was one of the greatest indignity, highly provocative of retaliation by force, and the law, as far as it may, should afford substantial protection against such outrages, in the way of liberal damages, that the public tranquillity may be preserved by saving the necessity of resort to personal violence as the only means of redress.

        11

        Suitors, in the assertion of their rights, should be allowed approach to the temple of justice without incurring there exposure to such disgraceful indignities, in the very presence of its ministers.

        12

        It is customary to instruct juries that they may give vindictive damages where there are circumstances of malice, wilfulness, wantonness, outrage and indignity attending the wrong complained of. The act in question was wholly made up of such qualities. It was one of pure malignity, done for the mere purpose of insult and indignity.

        13

        An exasperated suitor has indulged the gratification of his malignant feelings in this despicable mode. The act was the very refinement of malice. The defendant appears to be a man of wealth; we can not say that he has been made to pay too dearly for the indulgence.

        14

        We have carefully looked into the instructions given and refused, and do not perceive any substantial error in respect to them.

        15

        The judgment must be affirmed.

        16

        Judgment affirmed.

    • 1.2 I.B. Intentional, Negligent, or Something in Between?

      • 1.2.1 Picard v. Barry Pontiac-Buick, Inc.--"The Camera Toucher"

        [Refer to this case's description in playlist I.A. for more facts.]

        1
        654 A.2d 690 (1995)
        2
        Victoria A. PICARD
        v.
        BARRY PONTIAC-BUICK, INC. et al.
        3
        93-221-A.
        4

        Supreme Court of Rhode Island.

        5
        February 9, 1995.
        6

        691*691 Peter M. Cosel, Donato D'Andrea, Newport, for plaintiff.

        7

        Lauren E. Jones, Jones Associates, Brenda Coville Harrigan, Gunning, LaFazia & Gnys, Robert S. Thurston, Jones Associates, Providence, for defendant.

        9
        OPINION
        10

        LEDERBERG, Justice.

        11

        This case came before the Supreme Court on the appeal of Jesse Silvia (defendant) from a judgment against him for assault and battery, for compensatory damages in the amount of $60,346, and for punitive damages in the amount of $6,350, plus interest and costs. We affirm the judgment in respect to the assault and battery but sustain the defendant's appeal in respect to damages. We vacate the award of damages and remand the case to the Superior Court for a new trial on damages.

        13
        FACTS AND PROCEDURAL HISTORY
        14

        This case began eight years ago with a broken signal light. The plaintiff, Victorie A. Picard, brought her mother's car to Barry Pontiac-Buick, Inc. (Barry Pontiac)[1] in Newport, Rhode Island, where the car had been purchased, to have the light repaired. While the car was being repaired, plaintiff decided to have its annual inspection performed as well. The car failed this inspection because, according to a Barry Pontiac representative, the brakes needed to be replaced. The plaintiff brought the car to Kent's Alignment Service (Kent's Alignment), also located in Newport, where the car passed inspection.

        15

        The plaintiff then contacted a local television news "troubleshooter" reporter, presumably to report her experience at the two inspection sites. Shortly after Kent's Alignment had inspected plaintiff's car, Barry Pontiac phoned Kent's Alignment to ask that the car be checked again and the sticker removed because the brakes "were bad." Accordingly Edward Kent (Kent), the owner of Kent's Alignment, set January 27, 1987, as the date that plaintiff, accompanied by her goddaughter Kristen Ann Seyster (Seyster), returned with the car to Kent's garage.

        16

        Kent's Alignment was divided into a garage area separated by a glass partition from an office area. At the time of the incident at issue in this case, Seyster was in the office, while plaintiff was in the garage. After Kent inspected the car, he told plaintiff that he had been asked to call Barry Pontiac which also wished to inspect the brakes. Ray Stevens (Stevens), the service manager at Barry Pontiac arrived at Kent's Alignment, accompanied by defendant, who was employed by Barry Pontiac.

        17

        692*692 The defendant began to inspect the brakes. He and plaintiff gave vastly different descriptions of what next happened. The plaintiff said she began to take a picture of defendant as he was facing away from her, presumably as evidence for the troubleshooter report. The plaintiff testified that she did intend to photograph defendant although the photograph was not intended to identify defendant. The photograph did, however, clearly show defendant fully facing the camera, standing upright while pointing his index finger at plaintiff. After the camera snapped, the events that gave rise to this case occurred.

        18

        The plaintiff testified that defendant "lunged" at her and "grabbed [her] around around [sic] the shoulders,"[2] although plaintiff did not experience any pain. The plaintiff then testified on cross-examination that after defendant grabbed her by both her shoulders, she and defendant "spun around wrestling." According to plaintiff, defendant released her after someone said, "let her go." The plaintiff then left the garage with her goddaughter.

        19

        Seyster and Stevens also testified at trial, and Kent's deposition was admitted into evidence. Seyster, who had remained in the office area, testified that she saw defendant "grab her [plaintiff's] left shoulder and try to get the picture with his other hand," but defendant did not touch either the photograph or the camera. Seyster further testified that defendant had reached for plaintiff with only one arm, not two, and that plaintiff was not spun around, shaken, picked up or thrown against a wall. Stevens testified that he did not see what transpired because his back was turned. He did, however, remember defendant "hollering" that he did not want his picture taken. Kent stated that after plaintiff came out of the office and attempted to photograph defendant, he heard defendant say something such as "don't take my picture." Kent then saw defendant reach for the camera and touch it, but saw no contact between plaintiff and defendant, nor did he see defendant lift plaintiff.

        20

        The defendant testified that as he was looking at the car, plaintiff had come up behind him and aimed the camera toward him. He then pointed at plaintiff and said, "who gave you permission to take my picture?" then walked around the car to plaintiff, placed his index finger on the camera and again asked, "who gave you permission to take my picture?" The defendant denied grabbing plaintiff, touching her body, threatening her or making any threatening gestures, scuffling with her or reaching for the photograph. He also testified that he did not intend to cause plaintiff any bodily harm.

        21

        The plaintiff testified that although she did not experience any pain immediately after the incident, she did experience numbness in her hips and legs. However, about a week after the incident, plaintiff visited William E. Kenney, M.D. (Kenney) because of "pain radiating down my right leg * * *," pain that reportedly continued periodically up to the time of trial. Kenney examined plaintiff and advised a CAT scan. W.R. Courey, M.D., of St. Anne's Hospital in Fall River, Massachusetts, prepared a radiology report on April 17, 1987, that described "[g]eneralized degenerative bulging of the annulus at [L-3-L-4, L-4-L-5 and L-5-S-1]." Kenney himself saw plaintiff five times in his office between January 30, 1987, and May 26, 1987, each time with a $30 charge.

        22

        On April 28, 1987, Kenney wrote a "To Whom it May Concern" letter, in which he stated:

        23
        "This patient had had a ruptured intervertebra disc on the left which was apparent in October or earlier of 1985. She had not complained of her right lower extremity, however, on 1/30/87 she was seen with a history that she had been assaulted on 1/22/87 and had pain in the right lower extremity. The CAT scan taken at St. Anne's Hospital on 4/17/87 reveals nerve root pressure on the right at L5-S1 level. 693*693 Therefore, this change is probably causally related with the assault."
        24

        On June 1, 1987, Kenney wrote a second "To Whom it May Concern" letter, stating: "The question has been raised as to whether or not the pain in the right leg is permanent. The answer is that it is probably not permanent, but there is no way that I have of knowing for sure whether it is permanent or not." (Emphasis added.) But, twenty-four days later, with no evidence of an intervening examination of plaintiff, Kenney, on June 25, 1987, wrote to plaintiff's attorney:

        25
        "It is apparent that the patient sustained a ruptured disc on the right at L5-S1 found by CAT scan on 4/17/87, following an assault on 1/22/87. The ruptured disc at L5-S1 on the right is a permanent injury." (Emphasis added.)
        26

        The injured area identified by Kenney was the right L5-S1 region of the spinal column. The defendant introduced into evidence a Newport Hospital Report dated March 26, 1985, which showed a left-sided disc herniation at the L5-S1 locus. The plaintiff confirmed at trial that she had had a history of back problems for at least ten years prior to her encounter with defendant.

        27

        On January 6, 1993, some five and one-half years after he last examined plaintiff, Kenney again wrote to plaintiff's counsel and stated:

        28
        "To a reasonable degree of medical certainty, in my opinion, the ruptured disc Victorie Picard sustained at L5-S1 was proximately caused by the assault of January 22, 1987. The injury sustained on January 22, 1987, in my opinion, stated with a reasonable degree of medical certainty is permanent in nature."
        29

        On January 11, 1993, Kenney swore an affidavit entitled: "Amended Affidavit Under Section 9-17-27 [sic] of the Rhode Island General Laws Entitled `Evidence of Charges for Medical and Hospital Services'" that amended his affidavit of 1987. Attached to the amended affidavit were Kenney's letter of January 6, 1993, the radiology report from St. Anne's Hospital dated April 17, 1987, and the receipts from plaintiff's five visits to Kenney's office. The original affidavit had contained receipts of the office visits, Kenney's letters of June 25, 1987, June 1, 1987, and April 28, 1987, the radiology report and a letter of May 5, 1987, describing the radiology report.

        30

        The amended affidavit stated in part:

        31
        "Now comes William E. Kenney, M.D. and makes affidavit under oath and says as follows: * * *
        32
        (3) That the attached record of examination of the person examined reflects my true opinion with respect to the diagnosis, prognosis, and proximate cause of the conditions diagnosed.
        33
        (4) That to a reasonable degree of medical certainty, the condition detailed in the attached record, related in the history provided by the patient, was the proximate result of the incident which occurred on January 22, 1987."
        34

        Other than plaintiff's testimony, these affidavits and their appended records and letters, admitted into evidence by the trial judge, constituted the only medical evidence that documented plaintiff's alleged injury. Kenney was not deposed, nor did he testify at trial.

        35

        The plaintiff prevailed at trial and was awarded compensatory damages in the amount of $60,346. Because the trial justice found that defendant's conduct was "sufficiently egrigious [sic]," punitive damages in the amount of $6,350 were imposed, for a total judgment of $66,696, plus interest and costs. The defendant appealed the judgment, arguing (1) that plaintiff failed to prove an assault and battery; (2) that plaintiff failed to prove that defendant's actions in fact caused the alleged harm to her; and (3) that the damage awards were grossly excessive and inappropriate as a matter of law.

        37
        STANDARD OF REVIEW
        38

        The findings made by a trial justice, sitting without a jury, are accorded great weight. Raheb v. Lemenski, 115 R.I. 576, 579, 350 A.2d 397, 399 (1976). These findings will not be disturbed on appeal absent a determination that the trial justice misconceived or overlooked relevant evidence or was otherwise clearly wrong. Rego Displays, 694*694 Inc. v. Fournier, 119 R.I. 469, 473, 379 A.2d 1098, 1100-01 (1977); Barattini v. McGovern, 110 R.I. 360, 362, 292 A.2d 860, 861 (1972).

        40
        ASSAULT AND BATTERY
        41

        The defendant contended that plaintiff failed to prove the occurrence of an assault because plaintiff was not placed in reasonable fear of imminent bodily harm. Further, defendant argued that plaintiff failed to prove a battery because the evidence failed to establish that defendant intended to inflict an unconsented touching of plaintiff. We disagree with both contentions.

        42

        Assault and battery are separate acts, usually arising from the same transaction, each having independent significance. Proffitt v. Ricci, 463 A.2d 514, 517 (R.I. 1983). "An assault is a physical act of a threatening nature or an offer of corporal injury which puts an individual in reasonable fear of imminent bodily harm." Id. It is a plaintiff's apprehension of injury which renders a defendant's act compensable. Id.; see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 10, at 43 (5th ed. 1984) ("[t]he damages recoverable for [assault] are those for the plaintiff's mental disturbance, including fright, humiliation and the like, as well as any physical illness which may result from them"). This apprehension must be the type of fear normally aroused in the mind of a reasonable person. Keeton et al., supra, at 44.

        43

        The plaintiff testified that she was frightened by defendant's actions. A review of the attendant circumstances attests that such a reaction was reasonable. The defendant admitted approaching plaintiff, and the photograph taken that day clearly showed defendant pointing his finger at plaintiff as defendant approached her. Because plaintiff's apprehension of imminent bodily harm was reasonable at that point, plaintiff has established a prima facie case of assault.

        44

        We have defined battery as an act that was intended to cause, and in fact did cause, "an offensive contact with or unconsented touching of or trauma upon the body of another, thereby generally resulting in the consummation of the assault. * * * An intent to injure plaintiff, however, is unnecessary in a situation in which a defendant willfully sets in motion a force that in its ordinary course causes the injury." Proffitt, 463 A.2d at 517.

        45

        In the instant case, defendant contended that a battery did not occur because defendant did not intend to touch or injure plaintiff. Rather, defendant argued, the evidence showed that he intended to touch plaintiff's camera, not plaintiff's person, and therefore the contact was insufficient to prove battery. With this contention we must disagree. Even if this court were to accept defendant's characterization of the incident, a battery had nonetheless occurred. The defendant failed to prove that his actions on January 22, 1987, were accidental or involuntary. Therefore, defendant's offensive contact with an object attached to or identified with plaintiff's body was sufficient to constitute a battery. As noted in the comments to the Restatement (Second) Torts § 18, comment c at 31 (1965):

        46
        "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." (Emphasis added.)
        47

        The defendant's contact with the camera clutched in plaintiff's hand was thus sufficient to constitute a battery. We conclude, therefore, that plaintiff has proven the elements of assault and battery.

        49
        PROOF OF CAUSATION
        50

        The defendant next asserted that evidence was insufficient to prove that his actions caused plaintiff's condition because the medical evidence submitted by plaintiff was 695*695 not competent.[3] We agree.

        51

        At the start of trial, defendant objected to the admission of Kenney's January 11, 1993 affidavit which refers to Kenney's opinions to the permanency of plaintiff's condition. The record disclosed that Kenney last examined plaintiff on May 26, 1987, but included no evidence that Kenney examined plaintiff at any time during the ensuing five and one-half year period before executing the affidavit. At the time of trial Kenney had been retired for six years and resided in Massachusetts. It is an impermissible affront to reason to uphold Kenney's affidavit which attested to the cause and permanency of injury in a patient whom he had not treated in five and one-half years and whose medical file he apparently did not consult at the time he signed the affidavit.[4] Furthermore, the material which supported the affidavit was substantively inconsistent. Kenney's 1993 letter stated that the injury to plaintiff was "permanent in nature." However, in support of the 1987 affidavit, shortly after his last examination of plaintiff, he wrote on June 1, 1987, that the injury was "probably not permanent." Yet, twenty-four days later, without reexamining plaintiff, he stated in a letter to plaintiff's attorney, that the injury was permanent, a position which he maintained until 1993, though he never reexamined plaintiff in the intervening five and one-half years.

        52

        In Parrillo v. F.W. Woolworth Co., 518 A.2d 354, 355 (R.I. 1986), this court stated that, "The substitution of a written affidavit for live medical testimony * * * in no way relaxes the minimum requirements for the admission of competent medical testimony." Further, we have noted that, "Although all litigants have the right to take advantage of the provisions of § 9-19-27, they run the risk of a failure of proof unless the medical picture is sufficiently clear and unambiguous to lend itself to this simplified manner of proof." Id. at 356. In the instant case, the conflicting descriptions by Kenney concerning the permanency of plaintiff's injury and the length of time between his examinations and the production of the amended affidavit conclusively demonstrate that the proof was not "clear and unambiguous." Id. Our careful review of the record failed to disclose conclusive evidence that plaintiff's alleged injuries were caused by defendant's assault and battery and that such alleged injury was permanent. Indeed, the trial justice stated that "the disability that she [plaintiff] suffers under is per the medical opinion permanent, or at least was at the time of the opinion." The trial justice's apparent doubt as to whether the injury was permanent at the time of trial illustrated further plaintiff's failure to present sufficient medical evidence under this simplified manner of proof. See Parrillo, 518 A.2d at 356. We therefore conclude that the medical evidence presented by plaintiff was incompetent to establish that the assault and battery by defendant was the proximate cause of plaintiff's alleged injury.

        54
        DAMAGES

        56
        A. Compensatory Damages
        57

        The defendant next argued that the trial justice's award of compensatory damages in the amount of $60,346 was grossly excessive. We agree.

        58

        The trial justice based the award of compensatory damages in part on the pain and suffering alleged by plaintiff, whom the trial justice found credible and candid. The trial justice found that the inconsistencies in the testimony of the witnesses presented by plaintiff were "not significant in [the] Court's 696*696 mind." Such a conclusion, however, ignored the contradictions between the witnesses' testimony and the internal inconsistencies of plaintiff's own testimony. Indeed, our review of the record revealed that plaintiff's testimony was remarkably malleable.[5] The plaintiff transformed a slight touching (as it was characterized by all witnesses except plaintiff) into a major assault and battery.

        59

        In addition to the inconsistencies in plaintiff's testimony concerning the event, plaintiff's testimony in respect to her pain and suffering was not credible, given her medical disabilities that predated the alleged additional injury that she claimed to have sustained as a result of the assault and battery. The trial justice was clearly wrong in relying on plaintiff's testimony concerning her pain and suffering absent additional evidence to establish the specific pain and suffering that developed from this contact with defendant.

        60

        This court will not disturb an award for pain and suffering unless the award "`shocks the conscience' or is grossly excessive." Proffitt, 463 A.2d at 519 (citing Bruno v. Caianiello, 121 R.I. 913, 917, 404 A.2d 62, 65 (1979)). Given the absence of competent medical evidence of causation and given that plaintiff's testimony concerning the assault and her subsequent injuries was not credible, the award of $60,346 in compensatory damages was clearly excessive and out of all proportion to the alleged injury. Consequently, we vacate the award.

        62
        B. Punitive Damages
        63

        The defendant also argued that punitive damages should not have been awarded because the trial justice did not find that defendant acted with malice or in bad faith as directed by Palmisano v. Toth, 624 A.2d 314, 318 (R.I. 1993). Disfavored in the law, an award of punitive damages is an extraordinary sanction permitted only with great caution and within narrow limits. Id. In the instant case there was no proof of malice or bad faith nor was there a finding that defendant acted with malice. Consequently, the award of punitive damages in this case was not consistent with the purpose of such damages, namely, the deterrence of a defendant's "willfulness, recklessness or wickedness," because evidence of these factors was not presented. Id. (quoting Sherman v. McDermott, 114 R.I. 107, 109, 329 A.2d 195, 196 (1974)).

        64

        In conclusion, we deny in part and sustain in part the defendant's appeal. We affirm the judgment of the Superior Court in respect to the defendant's commission of assault and battery, but we vacate the awards of compensatory and punitive damages. We remand the case to the Superior Court for a new trial on the damages sustained by the plaintiff.

        66

        [1] After plaintiff rested, Barry Pontiac moved to dismiss the suit against it pursuant to Rule 41(b)(2) of the Superior Court Rules of Civil Procedure. The trial justice granted the motion, and therefore, Barry Pontiac is not a party to this appeal.

        68

        [2] In a statement describing the incident to the Newport Police, plaintiff stated, "HE GRABBED MY COAT[.] I LUNGED BACKWARD HURTING MY BACK[.]" In a Social Security Administration "Reconsideration Disability Report" dated March 20, 1987, plaintiff stated that she had been "attack [sic] by a merchanic [sic] from Barry Pontiac" and that she had been "[t]hrown against a wall at Kents [sic] garage [.]" The plaintiff testified at trial that, notwithstanding the Disability Report, she had not been thrown against a wall.

        70

        [3] The affidavit was admitted under G.L. 1956 (1985 Reenactment) § 9-19-27, which states in pertinent part:

        71

        "(a) [I]n any proceeding commenced in any court * * *, an itemized bill and reports, including hospital medical records, relating to medical * * * services * * * and/or any report of any examination of said injured person, including, but not limited to, hospital medical records subscribed and sworn to * * * by the physician * * * shall be admissible as evidence of * * * the necessity of such services or treatment, the diagnosis of said physician * * *, the prognosis of such physician * * * the opinion of such physician * * * as to proximate cause of the condition so diagnosed, the opinion of such physician * * * as to disability or incapacity, if any, proximately resulting from the condition so diagnosed * * *."

        73

        [4] Counsel for Barry Pontiac reported at trial that Kenney had retired six years earlier and had sent his medical records to "dead files."

        75

        [5] The following exchanges between plaintiff and defense counsel illustrate the nature of plaintiff's testimony:

        76

        "Q So it's possible that you told Dr. Kenney that you were shaken by the assailant?

        77

        "A Well, I was shaken, but maybe not in the terms — but I was shook up. That's it. You know what I mean. I was shook up mentally. I was ascared [sic]."

        78

        and again,

        79

        "Q Are you claiming that he [Silvia] physically picked you up and swung you around?

        80

        "A Well, my feet wasn't hitting the floor. * * *.

        81

        "Q So in addition to Mr. Silvia grabbing you by the shoulders he physically lifted you off the ground, is that correct?

        82

        "A I can't say for sure because I felt dizzy. The room was spinning. So I felt like I was off the floor, but I don't know because I was just moving around fast."

      • 1.2.2 Garratt v. Dailey--"The Chair-Pulling Five Year Old"

        [Refer to this case’s description in playlist I.A. for more facts.]

        2

        Page 197

        5
        46 Wn.2d 197

        8
        279 P.2d 1091

        11
        Ruth GARRATT, Appellant,
        v.
        Brian DAILEY, a Minor, by George S. Dalley, his Guardian ad
        Litem, Respondent.

        14
        No. 32841.

        17
        Supreme Court of Washington, Department 2.

        20
        Feb. 14, 1955.
        Rehearing Denied May 3, 1955.
        22

        Page 198

        24

                [279 P.2d 1092] Kennett, McCutcheon & Soderland, Seattle, James P. Healy, Tacoma, for appellant.

        26

                Frederick J. Orth, Rode, Cook, Watkins & Orth, Seattle, for respondent.

        28

                HILL, Justice.

        30

                The liability of an infant for an alleged battery is presented to this court for the first time. Brian

        32

        Page 199

        34

        'III. * * * that while Naomi Garratt and Brian Dailey were in the back yard the plaintiff, Ruth Garratt, came out of her house into the back yard. Some time subsequent thereto defendant, Brian Dailey, picked up a lightly built wood and canvas lawn chair which was then and there located in the back yard of the above described premises, moved it sideways a few feet and seated himself therein, at which time he discovered the plaintiff, Ruth Garratt, about to sit down at the place where the lawn chair had formerly been, at which time he hurriedly got up from the chair and attempted to move it toward Ruth Garratt to aid her in sitting down in the chair; that due to the defendant's small size and lack of dexterity he was unable to get the lawn chair under the plaintiff in time to prevent her from falling to the ground. That plaintiff fell to the ground and sustained a fracture of her hip, and other injuries and damages as hereinafter set forth.

        36

        'IV. That the preponderance of the evidence in this case establishes that when the defendant, Brian Dailey, moved the chair in question he did not have any wilful or unlawful purpose in doing so; that he did not have any intent to injure the plaintiff, or any intent to bring about any unauthorized or offensive contact with her person or any objects appurtenant thereto; that the circumstances which immediately preceded the fall of the plaintiff established that the defendant, Brian Dailey, did not have purpose, intent or design to perform a prank or to effect an assault and battery upon the person of the plaintiff.' (Italics ours, for a purpose hereinafter indicated.)

        38

                It is conceded that Ruth Garratt's fall resulted in a fractured hip and other painful and serious injuries. To obviate

        40

        Page 200

        42

                The authorities generally, but with certain notable exceptions, see Bohlen, 'Liability in Tort of Infants and Insane Persons,' 23 Mich.L.Rev. 9, state that when a minor has committed a tort with force he is liable to be proceeded against as any other person would be. Paul v. Hummel, 1868, 43 Mo. 119, 97 Am.Dec. 381; Huchting v. Engel, 1863, 17 Wis. 230, 84 Am.Dec. 741; Briese v. Maechtle, 1911, 146 Wis. 89, 130 N.W. 893, 35 L.R.A.,N.S., 574; 1 Cooley on Torts (4th ed.) 194, § 66; Prosser on Torts 1085, § 108; 2 Kent's Commentaries 241; 27 Am.Jur. 812, Infants, § 90.

        44

                In our analysis of the applicable law, we start with the basis premise that Brian, whether five or fifty-five, must have committed some wrongful act before he could be liable for appellant's injuries.

        46

                The trial court's finding that Brian was a visitor in the Garratt back yard is supported by the evidence and negatives appellant's assertion that Brian was a trespasser and had no right to touch, move, or sit in any chair in that yard, and that contention will not receive further consideration.

        48

                It is urged that Brian's action in moving the chair constituted a battery. A definition (not all-inclusive but sufficient for out purpose) of a battery is the intentional infliction of a harmful bodily contact upon another. The rule that determines liability for battery is given in 1 Restatement, Torts, 29, § 13, as:

        50

        'An act which, directly or indirectly, is the legal cause of a harmful contact with another's person makes the actor liable to the other, if

        52

        '(a) the act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a third person, and

        54

        '(b) the contact is not consented to by the other or the

        56

        Page 201

        58

        '(c) the contact is not otherwise privileged.'

        60

                We have in this case no question of consent or privilege. We therefore proceed to an immediate consideration of intent and its place in the law of battery. In the comment on clause (a), the Restatement says:

        62

        'Character of actor's intention. In order that an act may be done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to a particular person, either the other or a third person, the act must be done for the purpose of causing the contact or apprehension or with knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced.' See, also, Prosser on Torts 41, § 8.

        64

                We have here the conceded volitional act of Brian, i. e., the moving of a chair. Had the plaintiff proved to the satisfaction of the trial court that Brian moved the chair while she was in the act of sitting down, Brian's action would patently have been for the purpose or with the intent of causing the plaintiff's bodily contact with the ground, and she would be entitled to a judgment against him for the resulting damages. Vosburg v. Putney, 1891, 80 Wis. 523, 50 N.W. 403, 14 L.R.A. 226; Briese v. Maechtle, supra.

        66

                The plaintiff based her case on that theory, and the trial court held that she failed in her proof and accepted Brian's version of the facts rather than that given by the eyewitness who testified for the plaintiff. After the trial court determined that the plaintiff had not established her theory of a battery (i. e., that Brian had pulled the chair out from under the plaintiff while she was in the act of sitting down), it then became concerned with whether a battery was established under the facts as it found them to be.

        68

                In this connection, we quote another portion of the comment on the 'Character of actor's intention,' relating to clause (a) of the rule from the Restatement heretofore set forth:

        70

        'It is not enough that the act itself is intentionally done and this, even [279 P.2d 1094] though the actor realizes or should realize

        72

        Page 202

        74

                A battery would be established if, in addition to plaintiff's fall, it was proved that, when Brian moved the chair, he knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been. If Brian had any of the intents which the trial court found, in the italicized portions of the findings of fact quoted above, that he did not have, he would of course have had the knowledge to which we have referred. The mere absence of any intent to injure the plaintiff or to play a prank on her or to embarrass her, or to commit an assault and battery on her would not absolve him from liability if in fact he had such knowledge. Mercer v. Corbin, 1889, 117 Ind. 450, 20 N.E. 132, 3 L.R.A. 221. Without such knowledge, there would be nothing wrongful about Brian's act in moving the chair and, there being no wrongful act, there would be no liability.

        76

                While a finding that Brian had no such knowledge can be inferred from the findings made, we believe that before the plaintiff's action in such a case should be dismissed there should be no question but that the trial court had passed upon that issue; hence, the case should be remanded for clarification of the findings to specifically cover the question of Brian's knowledge, because intent could be inferred therefrom. If the court finds that he had such knowledge the necessary intent will be established and the plaintiff will be entitled to recover, even though there was no purpose to injure or embarrass the plaintiff. Vosburg v. Putney, supra. If Brian did not have such knowledge, there was no wrongful act by him and the basic premise of liability on the theory of a battery was not established.

        78

                It will be noted that the law of battery as we have

        80

        Page 203

        82

                From what has been said, it is clear that we find no merit in plaintiff's contention that we can direct the entry of a judgment for $11,000 in her favor on the record now before us.

        84

                Nor do we find any error in the record that warrants a new trial.

        86

                What we have said concerning intent in relation to batteries caused by the physical contact of a plaintiff with the ground or floor as the result of the removal of a chair by a defendant furnishes the basis for the answer to the contention of the plaintiff that the trial court changed its theory of the applicable law after the trial, and that she was prejudiced thereby.

        88

                It is clear to us that there was no change in theory so far as the plaintiff's case was concerned. The trial court consistently from beginning to end recognized that if the plaintiff proved what she alleged and her eyewitness testified, namely, that Brian pulled the chair out from under the plaintiff while she was in the act of sitting down and she fell to the ground in consequence thereof, a battery was established. Had she proved that state of facts, then the trial court's comments about inability to find any intent (from the connotation of motivation) to injure or embarrass the plaintiff, and the italicized portions of his findings as above set forth could have indicated a change of theory. But what must be recognized is that the trial court was trying in those comments and in the italicized findings to express the law applicable, not to the facts as the plaintiff contended they were, but to the facts as the trial court found them to be. The remand for clarification gives the plaintiff an opportunity to secure a judgment even though the trial court did not accept her version of the facts, if from all [279 P.2d 1095] the evidence, the trial court can find that Brian knew with substantial

        90

        Page 204

        92

                The plaintiff-appellant urges as another ground for a new trial that she was refused the right to cross-examine Brian. Some twenty pages of cross-examination indicate that there was no refusal of the right of cross-examination. The only occasion that impressed us as being a restriction on the right of cross-examination occurred when plaintiff was attempting to develop the fact that Brian had had chairs pulled out from under him at kindergarten and had complained about it. Plaintiff's counsel sought to do this by asking questions concerning statements made at Brian's home and in a court reporter's office. When objections were sustained, counsel for plaintiff stated that he was asking about the conversations to refresh the recollection of the child, and made an offer of proof. The fact that plaintiff was seeking to develop came into the record by the very simple method of asking Brian what had happened at kindergarten. Consequently what plaintiff offered to prove by the cross-examination is in the record, and the restriction imposed by the trial court was not prejudicial.

        94

                It is argued that some courts predicate an infant's liability for tort upon the basis of the existence of an estate in the infant; hence it was error for the trial court to refuse to admit as an exhibit a policy of liability insurance as evidence that there was a source from which a judgment might be satisfied. In our opinion the liability of an infant for his tort does not depend upon the size of his estate or even upon the existence of one. That is a matter of concern only to the plaintiff who seeks to enforce a judgment against the infant.

        96

                The motion for a new trial was also based on newly discovered evidence. The case having been tried to the court, the trial judge was certainly in a position to know whether that evidence would change the result on a new trial. It was not of a character that would make the denial of the motion an abuse of discretion.

        98

        Page 205

        100

                The plaintiff complains, and with some justice, that she was not permitted to take a pretrial deposition of the defendant Brian Dailey. While Rule of Pleading, Practice, and Procedure 30(b), 34A Wash.2d 91, gives the trial court the right 'for good cause shown' to prevent the taking of a deposition, it seems to us that though it might well have been taken under the supervision of the court to protect the child from leading, misleading and confusing questions, the deposition should have been allowed, if the child was to be permitted to testify at the trial. If, however, the refusal to allow the taking of the deposition was an abuse of discretion, and that we are not prepared to hold, it has not been established that the refusal constituted prejudicial error. (Parenthetically we would add that the right to a review of the rulings on pretrial procedure or with respect to depositions or discovery or incidental procedural motions preceding the trial seems to be limited to an appeal from a final judgment, 2 Barron and Holtzoff, Federal Practice and Procedure (Rules Ed.) § 803; 3 Id. § 1552, and realistically such a review is illusory for the reasons given by Prof. David W. Louisell. See 36 Minn.L.Rev. 654.)

        102

                The cause is remanded for clarification, with instructions to make definite findings on the issue of whether Brian Dailey knew with substantial certainty that the plaintiff would attempt to sit down where the chair which he moved had been, and to change the judgment if the findings warrant it.

        104

                Costs on this appeal will abide the ultimate decision of the superior court. If a judgment is entered for the plaintiff, Ruth Garratt, appellant here, she shall be entitled to her costs on this appeal. If, however, the judgment of dismissal remains unchanged, the respondent will be entitled to recover his costs on this appeal.

        106

                Remanded for clarification.

        108

                SCHWELLENBACH, DONWORTH, and WEAVER, JJ., concur.

    • 1.3 I.C. The Restatement Approach to Assault and Battery

      • 1.3.1 Restatement Approach to Assault

        2
        Restatement (Second) of Torts

        5
        § 21. Assault


        8

             (1) An actor is subject to liability to another for assault if

                  (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and

                  (b) the other is thereby put in such imminent apprehension.

             (2) An action which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of causing it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

      • 1.3.2 Restatement Approach to Battery

        2
        Restatement (Third) of Torts

        5
        Liability For Intentional Physical Harm

        7

             An actor who intentionally causes physical harm is subject to liability for that harm.



        11
        Restatement (Second) of Torts

        13

             (1) An actor is subject to liability to another for battery if

                  (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and

                  (b) an offensive contact with the person of the other directly or indirectly results.

             (2) An act which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for a mere offensive contact with the other's person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

  • 2 IV. Defenses: Overriding the Choices of Others

    Nearly any defined pattern of wrongdoing is likely to admit exceptions. That’s in part what can make it so difficult to simply stipulate by legal text ahead of time what behavior is allowed and what is not. But we can try. Efforts to taxonomize carve-outs from legal rules or standards can be worked into the prima facie – “at first glance” – case for a wrong. For example, we might start by defining a battery as an “…unconsented touching… .” Exceptions can also be enshrined as affirmative defenses: all the requirements of a prima facie case might be met, but a defense may then be invoked against it. In this configuration, a battery could be a mere “touching,” but a case for damages would be derailed if the defendant can show consent by the plaintiff. Is there any meaningful difference between defining a tort in a way that captures exceptions in the definition itself, compared to a simpler definition accompanied by a set of defenses?

    Here we look at some of the most common defenses to a range of intentional torts, and their limits. When, for example, should consent of the victim not be enough to eliminate liability for a wrongdoer? What happens when someone hurts someone else in an act of self-defense, but has made a mistake about the intentions of the person acted against? At what point should one’s personal or property rights yield to an emergency in which someone else’s life or property is at stake? This last question also offers us an opportunity to think in a more nuanced way about “plaintiffs” and “defendants” – in many situations the parties are interacting with one another, and each is prepared to claim wrong by the other. A court, then, might find each party as both plaintiff and defendant against the other, and one could imagine a range of actions that ought to be demanded or incented in order to reach a just outcome. Part of the nuance here is to recognize that the law can indeed alternatively “demand” and “incent”: the first, even in civil tort, could be backed up by a threat of jail time or crippling fines; the second, imposed as a carefully calibrated “cost of doing business.” By charging the “right” amount of damages for a harm, is it sensible to then speak of achieving the proper – “efficient,” even – level or amount of such harm in society?

    • 2.1 IV.A. Consent

      • 2.1.1 Hart v. Geysel--"The Fatal Prize Fight"

        Should a tort be recognized when both parties agreed to engage in harmful contact?

        1

        294 P. 570Supreme Court of Washington.

        HART

        v.

        GEYSEL et al.

        No. 22490.Dec. 29, 1930.
        2

        En Banc.

        3

        Appeal from Superior Court, King County; Chester A. Batchelor, Judge.

        4

        Action by Dean E. Hart, as administrator of the estate of Hamilton I. Cartwright, deceased, against Cecil Geysel and others. From a judgment dismissing the action, plaintiff appeals.

        5

        Affirmed.

        6

        HOLCOMB and FULLERTON, JJ., dissenting.

        7

        Bell, McNeil & Bowles, J. Speed Smith and Henry Elliott, Jr., all of Seattle, for appellant.

        8

        Caldwell & Lycette, Eggerman & Rosling, A. C. Van Soelen, Bruce MacDougall, and Todd, Holman & Sprague, all of Seattle, for respondents.

        10

        Opinion

        11

        MAIN, J.

        12

        This action was brought by the administrator of the estate of Hamilton I. Cartwright, deceased, who died as the result of a blow received in a prize fight. To the amended complaint, which will be referred to as the complaint, each of the defendants interposed a demurrer, which was sustained. The plaintiff refused to plead further and elected to stand upon the complaint. A judgment was entered dismissing the action, from which the plaintiff appeals.

        13

        February 5, 1929, Hamilton I. Cartwright and Cecil Geysel engaged in a prize fight in the city of Seattle, during which Cartwright received a blow which caused his death. In the complaint there are no facts showing that the mutual combat was engaged in in anger, that there was malicious intent to seriously injure, or that there was excessive force.

        14

        The controlling question is whether the action can be maintained for wrongful death when the encounter, though unlawful, was entered into with the consent of both parties.

        15

        Section 2556, Rem. Comp. Stat., makes prize fighting unlawful and provides that one engaging therein shall be guilty of a gross misdemeanor, with a proviso which is not here material.

        16

        The administrator has no greater rights pertaining to a recovery of damages than would the deceased have had, had he lived and brought an action for any injuries that he may have received. Ostheller v. Spokane & Indland Empire R. Co., 107 Wash. 678, 182 P. 630.

        17

        Upon the question stated, the adjudicated cases, as well as the text-writers, are in conflict. One line supports what is known as the majority rule, and the other, the minority. The majority rule has been stated as follows:

        18

        ‘Where the parties engage in mutual combat in anger, each is civilly liable to the other for any physical injury inflicted by him during the fight. The fact that the parties voluntarily engaged in the combat is no defense to an action by either of them to recover damages for personal injuries inflicted upon him by the other.’

        19

        This rule is supported by the cases of Willey v. Carpenter, 64 Vt. 212, 23 A. 630, 15 L. R. A. 853; Adams v. Waggoner, 33 Ind. 531, 5 Am. Rep. 230; Barholt v. Wright, 45 Ohio St. 177, 12 N. E. 185, 4 Am. St. Rep. 535; McNeil v. Mullin, 70 Kan. 634, 79 P. 168; Morris v. Miller, 83 Neb. 218, 119 N. W. 458, 20 L. R. A. (N. S.) 907, 131 Am. St. Rep. 636, 17 Ann. Cas. 1047; Colby McClendon, 85 Okl. 293, 206 P. 207, 30 A. L. R. 196; Royer v. Belcher, 100 W. Va. 694, 131 S. E. 556, 47 A. L. R. 1089; Littledike v. Wood, 69 Utah, 323, 255 P. 172.

        20

        The minority rule has been stated as follows:

        21

        ‘Where parties engage in a mutual combat in anger, the act of each is unlawful and relief will be denied them in a civil action; at least, in the absence of a showing of excessive force or malicious intent to do serious injury upon the part of the defendant.’

        22

        The cases of White v. Whittal, 113 Mich. 493, 71 N. W. 1118; Smith v. Simon, 69 Mich. 481, 37 N. W. 548; McNeil v. Choate, 197 Ky. 682, 247 S. W. 955; Lykins v. Hamrick, 144 Ky. 80, 137 S. W. 852; Wright v. Starr, 42 Nev. 41, 179 P. 877, 6 A. L. R. 981, support this rule.

        23

        With reference to the two rules, after reviewing the authorities, the Supreme Court of Oklahoma, in the comparatively recent case of Colby v. McClendon, 85 Okl. 293, 206 P. 207, 209, 30 A. L. R. 196, said:

        24

        ‘This court has never passed upon the question, but it seems that the majority rule is supported by the best reasoning. We think it should be followed in a case where the parties enter into a mutual combat with deadly weapons. The minority rule is announced in cases where the injury resulted from fist fights, although the case of Lykins v. Hamrick, supra, was where parties were engaged in a cutting scrape. We think it would be against public policy to apply the minority rule in a case where persons enter into a mutual combat with deadly weapons.’

        25

        In each of the cases which support the majority rule, the combat was entered into in anger, with a malicious intent to seriously injure, and in some of them the question of excessive force was present as bearing upon the question of damages. In the cases which support the minority rule, the encounter, or fist fight, as it may be called, was entered into in anger, from which it would be necessarily inferred that there was an intent to do injury.

        26

        The majority rule carries into a civil action, where one party sues the other for damages for something which has been done in violation of positive law, the principle applied in criminal prosecutions by the state to the effect that the consent of one or both of the parties does not prevent such a prosecution. The minority rule does not apply this principle when a civil action is brought by one of the parties against the other for damages which have been sustained in a combat consented to by both parties, but which was in violation of positive law. The authorities supporting the majority rule recognize that if the thing done is not one prohibited by positive law, for which a penalty is imposed then consent is a complete defense in a civil action for damages. The majority rule is an exception to two generally well-recognized and accepted principles of law: (a) That one who has consented to suffer a particular invasion of his private right has no right to complain; and (b) that no one shall profit by his own wrongdoing. The minority rule recognizes and applies these principles.

        27

        The facts in the case now before us do not bring it within the authorities supporting the majority rule, because here there are no facts which show anger, malicious intent to injure, or excessive force. It may be stated that the facts of this case do not contain one element of the minority rule, that of anger. It is unnecessary, as we view it, in the present case to adopt either rule. It is sufficient to say that in our opinion one who engages in prize fighting, even though prohibited by positive law, and sustains an injury, should not have a right to recover any damages that he may sustain as the result of the combat, which he expressly consented to and engaged in as a matter of business or sport. To enforce the criminal statute against prize fighting, it is not necessary to reward the one that got the worst of the encounter at the expense of his more fortunate opponent. This view is supported by the rule tentatively adopted by the American Law Institute in the Restatement of the Law of Torts, and is discussed in American Institute Treatise No. 1(a) Supporting Restatement No. 1, Torts, chapter V, section 75, beginning at page 172, 1925. In part, it is there said:

        28

        ‘Notwithstanding the numerical weight of authority against the view that an assent to a breach of the peace is a legally effective consent to such invasions of interest of personality as are involved therein the minority view is preferred for the following reasons:

        29

        ‘1. The majority view is obviously an exception to the general principle that one who has sufficiently expressed his willingness to suffer a particular invasion has no right to complaint if another acts upon his consent so given. The very nature of rights of personality, which are in freedom to dispose of one's interests of personality as one pleases, fundamentally requires this to be so. There is a further principle, applicable not only in tort law but throughout the whole field of law, and perhaps more conspicuously in other subjects, to the effect that no man shall profit by his own wrongdoing.

        30

        ‘The majority view is an exception to both of these two fundamental principles. Clearly if a plaintiff has consented to being struck by another in the course of a brawl, his right to the control of his person and to determine by whom and how it shall be touched has not been invaded. And it is equally clear that if he has so expressed his consent to the blow that, were he not party to a breach of the peace, his assent would be an operative consent and so bar his liability, he is profiting by the illegality of his conduct if because he is party to the breach of the peace he gains a right of action which but for his criminal joinder therein he would not have had.

        31

        ‘The majority view, being, as it is, an exception to two such otherwise universal principles of law, can be sustained only if it is founded upon authorities which were not only based upon sound reason when announced but which are based upon reasons which still remain sound and convincing, or if the exception is one which is required to carry into effect some weighty public policy.’

        32

        In the opinion in the case of Milam v. Milam, 46 Wash. 468, 90 P. 595, neither of the above rules was mentioned or discussed, and we do not regard that case as controlling. There is some language in it which leads to the belief that it was decided on the theory of excessive force.

        33

        The appellant cites a number of cases which hold that consent to an abortion by a patient is no defense to a subsequent action for damages against the doctor for performing the operation in a negligent manner, but if that by the rule in such cases it is not necessarily applicable to the facts now before us. We here distinctly do not express any opinion upon whether consent to an abortion precludes a right of recovery for the negligent act of the doctor in performing the operation.The judgment will be affirmed.

        34

        MITCHELL, C. J., and PARKER, TOLMAN, BEALS, MILLARD and BEELER, JJ., concur.

        35

        HOLCOMB, J. (dissenting).

        36

        I am unable to concur in the prevailing opinion because it is contrary to the better reasoning as stated in what is called the majority rule, is contrary to public policy, and sets a bad precedent.

        37

        The first error contained in the prevailing opinion is that there are no facts in the complaint showing that the mutual combat was engaged in in anger, that there was malicious intent to seriously injure, or that there was excessive force.

        38

        If excessive force be necessary as an element of recovery in a case where a mutual combat was voluntarily engaged in, the complaint alleges it in the following language:

        39

        ‘* * * The said Cecil Geysel, having engaged and while engaged in the said unlawful encounter with the said Hamilton I. Cartwright, continued fighting with the said Hamilton I. Cartwright and did unlawfully and unjustifiably assault, strike, beat and injure the said Hamilton I. Cartwright, and did strike the said Hamilton I. Cartwright so cruelly and with such force and violence as to knock him down and cause him to fall upon the floor, from which said assault, striking, beating and blows, and from the injuries received from the falling the said Hamilton I. Cartwright died.’

        40

        The foregoing certainly was an allegation of excessive force and brings and case squarely under our own decision in Milam v. Milam, 46 Wash. 468, 90 P. 595, which is distinguished in the majority opinion upon the ground that it was decided on the theory of excessive force.

        41

        The principal contention in the Milam Case, as shown by the briefs filed therein, was that the affray in that case was mutual and voluntary, and therefore the act committed was not done against the will of the party assaulted.

        42

        Unless this court intended to deny that proposition, there could be no recovery even when excessive force appears, just as in the present case.

        43

        For once, I am unable to agree with either the reasoning or conclusions arrived at tentatively by the American Law Institute in its Restatement of the Law, reference to which is made in the majority opinion, as being the better reasoning and the better principle to follow in deciding this case. I admit that ancient precedents should not govern where they are bad. One ancient case criticized in the Restatement, supra, was that of Matthew v. Ollerton, Comerbach 218, 90 Eng. Reprint 438, which is said to be a mere dictum stating: ‘If a man license another to beat him, such license is void as it is against the peace.’ This dictum, it is said, was followed in a more modern case, Boulter v. Clark, Buller's Nisi Prius, 16, where the presiding judge ruled that the fighting being unlawful the consent to fight, if proved, would not bar the plaintiff.

        44

        Although that may be but dictum and of faulty, human origin, there is ancient and Divine authority in the Mosaic law:

        45

        ‘And if men strive together, and one smite another, with a stone, or with his fist and he die not but keepeth his bed; if he rise again, and walk about upon his staff, then he that smote him be quit; only he shall pay for the loss of his time and shall cause him to be thoroughly healed.’ Exoduls XXI:18, 19.

        46

        See, also, Adams v. Waggoner, 33 Ind. 531, 5 Am. Rep. 230; McNeil v. Mullin, 70 Kan. 634, 79 P. 168; Willey v. Carpenter, 64 Vt. 212, 23 A. 630, 15 L. R. A. 853; Littledike v. Wood, 69 Utah. 323, 255 P. 172.

        47

        Our statute, Rem. Comp. Stat., § 2556, makes prize fighting unlawful. Hence, there could be no lawful consent to such a combat. Physical combats are against the peace anyway. Had it been a duel, it would have been unlawful and consent to fight a duel would not prevent recovery by either those injured, on the ground of excessive force, or the heirs or personal representatives of those injured.

        48

        The reasoning of Judge Cooley is, to my mind, greatly superior to the reasoning employed in the Restatement of the Law on Torts. Judge Cooley reasons as follows, Cooley on Torts (3d Ed.) 282:

        49

        ‘It is implied, in an assault or battery, that it is committed against the assent of the person assaulted; but there are some things a man can never assent to, and therefore his license in such cases can constitute no excuse. He can never consent, for instance, to the taking of his own life. His life is not his to take or give away; it would be criminal in him to take it, and equally criminal in any one else who should deprive him of it by his consent. The person who, in a duel, kills another, is not suffered to plead the previous arrangements and the voluntary exposure to death by agreement, as any excuse whatever. The life of an individual is guarded in the interest of the State, and not in the interest of the individual alone; and not his life only is protected, but his person as well. Consent cannot justify an assault.

        50

        ‘But suppose in the duel one is not killed, but only wounded; may he have an action against his adversary for this injury? If there is any reason why he may not, it must be because he has consented to what has been done. Volenti non fit injuria. But if he had no right or power to consent, and the consent expressed in words was wholly illegal and void, the question then is, how a, consent which the law forbids can be accepted in law as a legal protection?

        51

        ‘Consent is generally a full and perfect shield when that is complained of as a civil injury which was consented to. * * *

        52

        ‘But in case of a breach of the peace it is different. The State is wronged by this, and forbids it on public grounds. If men fight, the State will punish them. If one is injured, the law will not listen to an excuse based on a breach of the law. There are three parties here, one being the State, which, for its own good, does not suffer the others to deal on a basis of contract with the public peace. The rule of law is therefore clear and unquestionable, that consent to an assault is no justification. Where a combat involves a breach of the peace, the mutual consent of the parties thereto is to be regarded as unlawful, and as not depriving the injured party, or, for that matter, each injured party, from recovering damages for injuries received from the unlawful acts of the other.’

        53

        See, also, 1 Jaggard on Torts, 203, to the same effect.

        54

        I am convinced the complaint stated a cause of action under the correct principles of law and the judgment should be reversed.

        55

        FULLERTON, J.
        I concur in the conclusion of Judge HOLCOMB.

      • 2.1.2 Hackbart v. Cincinnati Bengals--"The No-Foul-But-Severe-Harm Case"

        Does the nature of a rough-and-tumble activity like professional football excuse potential tort liability arising from the game?

        1
        601 F.2d 516 (1979)
        2
        Dale Hackbart, Plaintiff-Appellant,
        v.
        Cincinnati Bengals, Inc., and Charles "Booby" Clark, Defendants-Appellees.
        3
        No. 77-1812.
        4

        United States Court of Appeals, Tenth Circuit.

        5
        Argued March 13, 1979.
        6
        Decided June 11, 1979.
        7

        517*517 518*518 Mary Butler, of Johnson & Mahoney, P. C., Denver, Colo. (Roger F. Johnson, Denver, Colo., on brief), for plaintiff-appellant.

        8

        Robert G. Stachler, of Taft, Stettinius & Hollister, Cincinnati, Ohio (William C. McClearn, of Holland & Hart, Denver, Colo., and Thomas T. Terp, of Taft, Stettinius & Hollister, Cincinnati, Ohio, on brief), for defendants-appellees.

        9

        Before DOYLE, McKAY and LOGAN, Circuit Judges.

        10

        WILLIAM E. DOYLE, Circuit Judge.

        11

        The question in this case is whether in a regular season professional football game an injury which is inflicted by one professional football player on an opposing player can give rise to liability in tort where the injury was inflicted by the intentional stricking of a blow during the game.

        12

        The injury occurred in the course of a game between the Denver Broncos and the Cincinnati Bengals, which game was being played in Denver in 1973. The Broncos' defensive back, Dale Hackbart, was the recipient of the injury and the Bengals' offensive back, Charles "Booby" Clark, inflicted the blow which produced it.

        13

        By agreement the liability question was determined by the United States District Court for the District of Colorado without a jury. The judge resolved the liability issue in favor of the Cincinnati team and Charles Clark. Consistent with this result, final judgment was entered for Cincinnati and the appeal challenges this judgment. In essence the trial court's reasons for rejecting plaintiff's claim were that professional football is a species of warfare and that so much physical force is tolerated and the magnitude of the force exerted is so great that it renders injuries not actionable in 519*519 court; that even intentional batteries are beyond the scope of the judicial process.

        14

        Clark was an offensive back and just before the injury he had run a pass pattern to the right side of the Denver Broncos' end zone. The injury flowed indirectly from this play. The pass was intercepted by Billy Thompson, a Denver free safety, who returned it to mid-field. The subject injury occurred as an aftermath of the pass play.

        15

        As a consequence of the interception, the roles of Hackbart and Clark suddenly changed. Hackbart, who had been defending, instantaneously became an offensive player. Clark, on the other hand, became a defensive player. Acting as an offensive player, Hackbart attempted to block Clark by throwing his body in front of him. He thereafter remained on the ground. He turned, and with one knee on the ground, watched the play following the interception.

        16

        The trial court's finding was that Charles Clark, "acting out of anger and frustration, but without a specific intent to injure * * * stepped forward and struck a blow with his right forearm to the back of the kneeling plaintiff's head and neck with sufficient force to cause both players to fall forward to the ground." Both players, without complaining to the officials or to one another, returned to their respective sidelines since the ball had changed hands and the offensive and defensive teams of each had been substituted. Clark testified at trial that his frustration was brought about by the fact that his team was losing the game.

        17

        Due to the failure of the officials to view the incident, a foul was not called. However, the game film showed very clearly what had occurred. Plaintiff did not at the time report the happening to his coaches or to anyone else during the game. However, because of the pain which he experienced he was unable to play golf the next day. He did not seek medical attention, but the continued pain caused him to report this fact and the incident to the Bronco trainer who gave him treatment. Apparently he played on the specialty teams for two successive Sundays, but after that the Broncos released him on waivers. (He was in his thirteenth year as a player.) He sought medical help and it was then that it was discovered by the physician that he had a serious neck fracture injury.

        18

        Despite the fact that the defendant Charles Clark admitted that the blow which had been struck was not accidental, that it was intentionally administered, the trial court ruled as a matter of law that the game of professional football is basically a business which is violent in nature, and that the available sanctions are imposition of penalties and expulsion from the game. Notice was taken of the fact that many fouls are overlooked; that the game is played in an emotional and noisy environment; and that incidents such as that here complained of are not unusual.

        19

        The trial court spoke as well of the unreasonableness of applying the laws and rules which are a part of injury law to the game of professional football, noting the unreasonableness of holding that one player has a duty of care for the safety of others. He also talked about the concept of assumption of risk and contributory fault as applying and concluded that Hackbart had to recognize that he accepted the risk that he would be injured by such an act.

        21
        I.

        23
        THE ISSUES AND CONTENTIONS
        24

        1. Whether the trial court erred in ruling that as a matter of policy the principles of law governing the infliction of injuries should be entirely refused where the injury took place in the course of the game.

        25

        2. Did the trial court err in concluding that the employee was not vicariously liable for an activity for which he had not received express authorization?

        26

        3. Whether it was error to receive in evidence numerous episodes of violence which were unrelated to the case at bar, that is, incidents of intentional infliction of injury which occurred in other games.

        27

        4. Whether it was error for the trial court to receive in evidence unrelated acts on the part of the plaintiff.

        28

        520*520 5. The final issue is whether the evidence justifies consideration by the court of the issue of reckless conduct as it is defined in A.L.I. Restatement of the Law of Torts Second, § 500, because (admittedly) the assault and battery theory is not available because that tort is governed by a one-year statute of limitations.

        30
        II.

        32
        WHETHER THE EVIDENCE SUPPORTED THE JUDGMENT
        33

        The evidence at the trial uniformly supported the proposition that the intentional striking of a player in the head from the rear is not an accepted part of either the playing rules or the general customs of the game of professional football. The trial court, however, believed that the unusual nature of the case called for the consideration of underlying policy which it defined as common law principles which have evolved as a result of the case to case process and which necessarily affect behavior in various contexts. From these considerations the belief was expressed that even intentional injuries incurred in football games should be outside the framework of the law. The court recognized that the potential threat of legal liability has a significant deterrent effect, and further said that private civil actions constitute an important mechanism for societal control of human conduct. Due to the increase in severity of human conflicts, a need existed to expand the body of governing law more rapidly and with more certainty, but that this had to be accomplished by legislation and administrative regulation. The judge compared football to coal mining and railroading insofar as all are inherently hazardous. Judge Matsch said that in the case of football it was questionable whether social values would be improved by limiting the violence.

        34

        Thus the district court's assumption was that Clark had inflicted an intentional blow which would ordinarily generate civil liability and which might bring about a criminal sanction as well, but that since it had occurred in the course of a football game, it should not be subject to the restraints of the law; that if it were it would place unreasonable impediments and restraints on the activity. The judge also pointed out that courts are ill-suited to decide the different social questions and to administer conflicts on what is much like a battlefield where the restraints of civilization have been left on the sidelines.

        35

        We are forced to conclude that the result reached is not supported by evidence.

        37
        III.

        39
        WHETHER INTENTIONAL INJURY IS ALLOWED BY EITHER WRITTEN RULE OR CUSTOM
        40

        Plaintiff, of course, maintains that tort law applicable to the injury in this case applies on the football field as well as in other places. On the other hand, plaintiff does not rely on the theory of negligence being applicable. This is in recognition of the fact that subjecting another to unreasonable risk of harm, the essence of negligence, is inherent in the game of football, for admittedly it is violent. Plaintiff maintains that in the area of contributory fault, a vacuum exists in relationship to intentional infliction of injury. Since negligence does not apply, contributory negligence is inapplicable. Intentional or reckless contributory fault could theoretically at least apply to infliction of injuries in reckless disregard of the rights of others. This has some similarity to contributory negligence and undoubtedly it would apply if the evidence would justify it. But it is highly questionable whether a professional football player consents or submits to injuries caused by conduct not within the rules, and there is no evidence which we have seen which shows this. However, the trial court did not consider this question and we are not deciding it.

        41

        Contrary to the position of the court then, there are no principles of law which allow a court to rule out certain tortious conduct by reason of general roughness of the game or difficulty of administering it.

        42

        521*521 Indeed, the evidence shows that there are rules of the game which prohibit the intentional striking of blows. Thus, Article 1, Item 1, Subsection C, provides that:

        43
        All players are prohibited from striking on the head, face or neck with the heel, back or side of the hand, wrist, forearm, elbow or clasped hands.
        44

        Thus the very conduct which was present here is expressly prohibited by the rule which is quoted above.

        45

        The general customs of football do not approve the intentional punching or striking of others. That this is prohibited was supported by the testimony of all of the witnesses. They testified that the intentional striking of a player in the face or from the rear is prohibited by the playing rules as well as the general customs of the game. Punching or hitting with the arms is prohibited. Undoubtedly these restraints are intended to establish reasonable boundaries so that one football player cannot intentionally inflict a serious injury on another. Therefore, the notion is not correct that all reason has been abandoned, whereby the only possible remedy for the person who has been the victim of an unlawful blow is retaliation.

        47
        IV.

        49
        WAS IT LEGALLY JUSTIFIABLE FOR THE TRIAL COURT TO HOLD, AS A MATTER OF POLICY, THAT JURISDICTION SHOULD NOT BE ASSUMED OVER THE CASE IN VIEW OF THE FACT THAT IT AROSE OUT OF A PROFESSIONAL FOOTBALL GAME?

        51
        A. Whether the theory of judicial restraint applies.
        52

        It is a well-settled principle of federal jurisdiction that where a federal court does not have a discretion to accept or reject jurisdiction, if it does not have jurisdiction, it will not take it; but it is ruled, on the other hand, that if it has jurisdiction it must take it. This principle has been expressed many times with perhaps one of the best expressions being found in an early opinion, that of Mr. Chief Justice Marshall in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404, 5 L.Ed. 257 (1821):

        53
        It is most true, that this court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction, if it should. The judiciary cannot, as the legislature may, avoid a measure, because it approaches the confines of the constitution. We cannot pass it by, because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur, which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty. In doing this, on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the constitution and laws of the United States. We find no exception to this grant, and we cannot insert one.
        54

        Much more recently the Supreme Court in the case of Willcox v. Consolidated Gas Co., 212 U.S. 19, 40, 29 S.Ct. 192, 195, 53 L.Ed. 382 (1909), speaking through Mr. Justice Peckham, stated that where a federal court is appealed to in the case over which it has by law jurisdiction, it is its duty to take such jurisdiction.

        55
        They assume to criticise that court [United States District Court for the Southern District of New York] for taking jurisdiction of this case, as precipitate, as if it were a question of discretion or comity, whether or not that court should have heard the case. On the contrary, there was no discretion or comity about it. When a Federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction (Cohens v. Virginia, [19 U.S. 264,] 6 Wheat., 264, 404, 5 L.Ed. 257), and, in taking it, that court cannot be truthfully spoken of as precipitate in its conduct. 522*522 That the case may be one of local interest only is entirely immaterial, so long as the parties are citizens of different States or a question is involved which by law brings the case within the jurisdiction of a Federal court. The right of a party plaintiff to choose a Federal court where there is a choice cannot be properly denied.
        56

        Mr. Justice Peckham expressed the view that the rule is based on the right of a party plaintiff to choose a federal court where there is a choice.

        57

        There are some recognized limitations on federal courts assuming jurisdiction, but none of these permit a court to exercise its own discretion on the subject. One example of limitation is the political question. Another is the doctrine of abstention, which is exercised where a state court is involved and deference is exercised in favor of the state court. See, for example, Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). These, however, are the exceptions and not the rule as was pointed out in the cited case. Abstention itself is limited. It does not contemplate that federal courts abdicate their jurisdiction. See American Trial Lawyers Association v. New Jersey Supreme Court, 409 U.S. 467, 93 S.Ct. 627, 34 L.Ed.2d 651 (1973).

        58

        The Supreme Court has been known to refuse to exercise its original jurisdiction. Ohio v. Wyandotte Chemicals Corporation, 401 U.S. 493, 91 S.Ct. 1005, 28 L.Ed.2d 256 (1971). At the same time, it reiterated the traditional rule that where a federal court has jurisdiction it must exercise it. It is not at liberty to refuse to do so unless it is in accordance with one of the principles mentioned above. Original jurisdiction in the Supreme Court allows much more leeway to refusing acceptance of jurisdiction than does an inferior federal court.

        59

        It is clear that none of the grounds for refusing access to the courts are present in the instant case. One writer, Professor Keeton, has said that courts properly participate in the evolution and development of common law. We submit that this approach is at odds with refusing to accept the case. See Keeton, Creative Continuity of Tort Law, 75 Harv.L.Rev. 463 (1962). See also Widener, Some Random Thoughts on Judicial Restraint, 31 Wn. and Lee L.Rev. 505 (1974).[1]

        60

        The spirit and the letter of the decisions are that if jurisdiction to hear or determine cases exists, as it does in the case at bar, the cause is to be tried on its merits.

        61

        The position which was adopted by the trial court in this case was then directly contrary to all of the law dealing with the exercise of jurisdiction by federal courts.

        63
        B. Whether diversity jurisdiction provides any discretion.
        64

        It is of high importance to note the fact that in a diversity of citizenship case the federal district court sits as a state trial court and applies the law of the forum state. See Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In this highly important decision the Supreme Court, through the late Justice Brandeis, overruled the early case of Swift v. Tyson, 41 U.S. (16 Pet.) 1, 10 L.Ed. 865 (1842), which had allowed federal trial courts to apply their own common law. The rule was established in Erie that the law of the state in which the court sat had to be applied to the diversity case. In rejecting the principle that the federal court could apply its own common law rule, the Court rejected the idea that a transcendental body of law existed for federal courts. It was said that there was no backup federal authority in the federal government to provide this power for federal courts; that the authoritative governing force was in the state courts.

        65

        523*523 Justice Holmes was quoted by Justice Brandeis (the author of Erie) for the proposition that the authority in this diversity area must come from the state. A second basis for disapproval of federal authority or ability to innovate in diversity cases also originated with Justice Holmes, who said that the Swift v. Tyson rule was an unconstitutional assumption of power by the courts of the United States. The Supreme Court in Erie thus declared that in applying the theory of Swift v. Tyson, the Supreme Court and lower federal courts had invaded rights protected by the Constitution of the United States and the several states.

        66

        So, applying the Erie doctrine, the conclusion is that there does not exist an independent basis which allows a federal court to, in effect, outlaw a particular activity absent legal evidence that either state policy or state law dictates or allows such action. Absent any such evidence, the trial court cannot turn to public policy in order to support a conclusion that the courts cannot entertain a particular case.

        67

        Second, it is also fundamental that for every injury wrongfully inflicted, some redress under the state common law must be afforded since it is essential that citizens be able to look to their government for redress. As was said in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60 (1803), "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the law, whenever he received an injury. One of the first duties of government is to afford that protection."

        68

        The right of citizens to get relief in federal courts is similar to the same right in state court, bearing in mind that the federal courts in diversity cases are applying state law. We must also be cognizant that federal courts are limited to deciding cases or controversies. This was pointed out in Flast v. Cohen, 392 U.S. 83, 94-95, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). The Court there said:

        69
        those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government.
        70

        392 U.S. at 95, 88 S.Ct. at 1950.

        71

        The Court in Flast was recognizing the right of a federal taxpayer to enjoin the spending of federal funds for the buying of books for use in religious schools. 392 U.S. at 105-06, 88 S.Ct. 1942.

        72

        The concurrence of Justice Douglas is worth noting, for he spoke on the right of access to the courts as follows:

        73
        The judiciary is an indispensable part of the operation of our federal system. With the growing complexities of government it is often the one and only place where effective relief can be obtained. If the judiciary were to become a super-legislative group sitting in judgment on the affairs of people, the situation would be intolerable. But where wrongs to individuals are done by violation of specific guarantees, it is abdication for the courts to close their doors.
        74

        392 U.S. at 111, 88 S.Ct. at 1958.

        76
        C. Does Colorado law provide or allow any restraint?
        77

        The next question is whether there are applicable restrictions in the Colorado law. On the contrary, the Colorado Constitution, Art. II, § 6, provides: "Court of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and right and justice should be administered without sale, denial or delay." The district courts are said to be courts of unlimited jurisdiction unlike the federal courts. However, in a diversity case the federal court inherits the jurisdictional scope that is enjoyed by the state court within the district. Art. VI, § 9, subsection (1), provides:

        78
        The district courts shall be trial courts of record with general jurisdiction, and shall have original jurisdiction in all civil, 524*524 probate, and criminal cases, except as otherwise provided herein, and shall have such appellate jurisdiction as may be prescribed by law.
        79

        The Colorado courts have liberally construed these provisions. See Patterson v. People, 23 Colo. App. 479, 130 P. 618 (1913); People ex rel. Cruz v. Morley, 77 Colo. 25, 234 P. 178 (1924). In the Morley case it was said: "[t]he constitutional jurisdiction of the district court is unlimited. It should not be limited without circumspection and no statute should be held to limit it unless it says so plainly * * *." 234 P. at 179.

        80

        The Colorado Supreme Court has held that under Art. II, § 6 of the Colorado Constitution, where there exists a right under the law, the courts of the state will assure the protection of that right. O'Quinn v. Walt Disney Productions, Inc., 177 Colo. 190, 493 P.2d 344 (1972).

        81

        The common law, of course, obtains in Colorado. The legislature may modify it, but in the absence of evidence that the common law has been modified by legislation, the courts, that is, the district court and the federal district court in a diversity case, must apply it.

        82

        We are constrained to hold that the trial court's ruling that this case had to be dismissed because the injury was inflicted during a professional football game was error.

        84
        V.

        86
        IS THE STANDARD OF RECKLESS DISREGARD OF THE RIGHTS OF OTHERS APPLICABLE TO THE PRESENT SITUATION?
        87

        The Restatement of Torts Second, § 500, distinguishes between reckless and negligent misconduct. Reckless misconduct differs from negligence, according to the authors, in that negligence consists of mere inadvertence, lack of skillfulness or failure to take precautions; reckless misconduct, on the other hand, involves a choice or adoption of a course of action either with knowledge of the danger or with knowledge of facts which would disclose this danger to a reasonable man. Recklessness also differs in that it consists of intentionally doing an act with knowledge not only that it contains a risk of harm to others as does negligence, but that it actually involves a risk substantially greater in magnitude than is necessary in the case of negligence. The authors explain the difference, therefore, in the degree of risk by saying that the difference is so significant as to amount to a difference in kind.

        88

        Subsection (f) also distinguishes between reckless misconduct and intentional wrongdoing. To be reckless the act must have been intended by the actor. At the same time, the actor does not intend to cause the harm which results from it. It is enough that he realized, or from the facts should have realized, that there was a strong probability that harm would result even though he may hope or expect that this conduct will prove harmless. Nevertheless, existence of probability is different from substantial certainty which is an ingredient of intent to cause the harm which results from the act.

        89

        Therefore, recklessness exists where a person knows that the act is harmful but fails to realize that it will produce the extreme harm which it did produce. It is in this respect that recklessness and intentional conduct differ in degree.

        90

        In the case at bar the defendant Clark admittedly acted impulsively and in the heat of anger, and even though it could be said from the admitted facts that he intended the act, it could also be said that he did not intend to inflict serious injury which resulted from the blow which he struck.

        91

        In ruling that recklessness is the appropriate standard and that assault and battery is not the exclusive one, we are saying that these two liability concepts are not necessarily opposed one to the other. Rather, recklessness under § 500 of the Restatement might be regarded, for the purpose of analysis at least, a lesser included act.

        92

        525*525 Assault and battery, having originated in a common law writ, is narrower than recklessness in its scope. In essence, two definitions enter into it. The assault is an attempt coupled with the present ability to commit a violent harm against another. Battery is the unprivileged or unlawful touching of another. Assault and battery then call for an intent, as does recklessness. But in recklessness the intent is to do the act, but without an intent to cause the particular harm. It is enough if the actor knows that there is a strong probability that harm will result. Thus, the definition fits perfectly the fact situation here. Surely, then, no reason exists to compel appellant to employ the assault and battery standard which does not comfortably apply fully in preference to the standard which meets this fact situation.

        94
        VI.

        96
        WHICH OF THE STATUTES OF LIMITATIONS APPLIES?
        97

        The appellees contend that Clark was guilty of an assault and battery, if he was guilty of anything; that this is barred by the applicable statute of limitations for a one-year period. Appellant, however, contends that the injury was the result of reckless disregard of the rights of the plaintiff and that the six-year statute provided in Colo.Rev.Stat.Ann. § 13-80-110, is applicable.

        98

        Our court in the recent decision in Zuniga v. Amfac Foods, Inc., 580 F.2d 380 (10th Cir.1978), adopted the position that actions in tort are governed by the six-year provision in the cited statute. It is also to be noted that Colorado fully recognizes the action of reckless disregard for the rights of others. See Pettingell v. Moede, 129 Colo. 484, 271 P.2d 1038 (1954); Fanstiel v. Wright, 122 Colo. 451, 222 P.2d 1001 (1950); Shoemaker v. Mountain States Tel. & Tel. Co., 559 P.2d 721 (Colo.App. 1976). The definitions contained in § 500 are fully applicable here, and the Colorado Supreme Court in Fanstiel v. Wright, supra, has adopted the definition contained in § 500. A Comment to the section discusses the distinctions which we have previously mentioned.

        99

        We conclude that if the evidence establishes that the injuries were the result of acts of Clark which were in reckless disregard of Hackbart's safety, it can be said that he established a claim which is subject to the six-year statute. The cause has not been tried on its merits, but there is substantial evidence before us that supports the notion that Clark did act in accordance with the tests and standards which are set forth in § 500, supra. We are not prejudging this issue of fact, but are merely saying that considered in a light favorable to the plaintiff, at this stage of the proceedings the hypothesis exists that Clark's conduct would constitute a violation of § 500 and the appellant should be given an opportunity to offer his proofs in court on this subject.

        101
        VII.

        103
        DID THE COURT ERR IN RECEIVING IN EVIDENCE FILMS OF VIOLENCE THAT TOOK PLACE IN OTHER FOOTBALL GAMES REGARDLESS OF THE IDENTITY OF THE PLAYERS AND TEAMS?
        104

        There was a film of the actual injury suffered by plaintiff. It showed the sequence of events and also depicted the manner of infliction. Obviously we need not consider the relevancy of this.

        105

        There were incidents that were designed to show that the plaintiff Hackbart was a dirty player.

        106

        Finally, films were shown which depicted acts of violence between other players and other teams.

        107

        The Federal Rules of Evidence, Rule 401, define relevant evidence as follows:

        108
        "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
        109

        526*526 Rule 404 deals with character evidence and other crimes. That which deals with character states as follows:

        110
        (a) Character evidence generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
        111
        (1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;
        112
        (2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
        113
        (3) Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.
        114

        Subsection (b) of Rule 404 deals with other wrongs or acts and states the traditional rule that:

        115
        (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
        116

        Unless the game of football is on trial, and it appeared to be in the case at bar, the acts of violence which occurred in other games and between other teams and players were without relevance. The view we take is that the game of football is not on trial, but, rather, the trial involves a particular act in one game.

        117

        Although we recognize that the trial court has a broad discretion in receiving or rejecting evidence along this line, we fail to see the relevancy of other acts which are unconnected with the incident being tried.

        118

        The other aspect, namely the proof of the character of the plaintiff by production of prior acts, would be admissible only if his character was an issue in the case. Unless the plaintiff was shown to have been an unlawful aggressor in the immediate incident, his prior acts could not be relevant. The indications from the picture of the action here are that he threw a body block and after the lapse of some time, a short period of time, the blow was struck while Hackbart was down on his knee watching the action. Therefore, this evidence would appear to be questionable if not irrelevant.

        119

        On retrial the admissibility of prior unrelated acts should be very carefully considered and should not be received merely for the purpose of showing that the defendant himself had violated rules in times past since this is not per se relevant. Indeed it would be necessary for an issue to exist as to whether Hackbart was the aggressor in order for such evidence to be relevant.

        121
        * * * * * *
        122

        In sum, having concluded that the trial court did not limit the case to a trial of the evidence bearing on defendant's liability but rather determined that as a matter of social policy the game was so violent and unlawful that valid lines could not be drawn, we take the view that this was not a proper issue for determination and that plaintiff was entitled to have the case tried on an assessment of his rights and whether they had been violated.

        123

        The trial court has heard the evidence and has made findings. The findings of fact based on the evidence presented are not an issue on this appeal. Thus, it would not seem that the court would have to repeat the areas of evidence that have already been fully considered. The need is for a reconsideration of that evidence in the light of that which is taken up by this court in its opinion. We are not to be understood as limiting the trial court's consideration of supplemental evidence if it deems it necessary.

        124

        527*527 The cause is reversed and remanded for a new trial in accordance with the foregoing views.

        126

        [1] Judge Widener of the U.S. Court of Appeals for the Fourth Circuit concluded that if a problem exists it "is not to say that the federal courts must avoid all the hard, or unpleasant, or distasteful questions," but rather the limitations should be on the basis that jurisdiction prohibits the acceptance of the case. Since Congress prescribed jurisdiction, the boundaries set by it should be followed.

    • 2.2 IV.B. Preservation of Bodily Integrity

      • 2.2.1 Courvoisier v. Raymond--"The Mistaken Self-Defender"

        Should the common law excuse harmful contact made in self-defense? If so, how do we decide which harmful acts fall within the scope of self-defense?

        1
        47 P. 284Supreme Court of Colorado.
        COURVOISIERv.RAYMOND.
        Sept. 21, 1896.
        2

        Appeal from district court, Arapahoe county.

        3

        Action by Edwin S. Raymond against Auguste Courvoisier for personal damages. From a judgment in favor of plaintiff, defendant appeals. Reversed.

        4

        Edwin S. Raymond, appellee, as plaintiff below, complains of Auguste Courvoisier, appellant, and alleges that on the 12th day of June, A. D. 1892, plaintiff was a regularly appointed and duly qualified acting special policeman in and for the city of Denver; that, while engaged in the discharge of his duties as such special policeman, the defendant shot him in the abdomen, thereby causing a serious and painful wound; that in so doing the defendant acted willfully, knowingly, and maliciously, and without any reasonable cause. It is further alleged that, by reason of the wound so received, plaintiff was confined to his bed for a period of 10 days, during which time he was obliged to employ, and did employ, a physician and nurse, the reasonable value of such services being $100, which sum the plaintiff had obligated himself to pay; that the wound rendered him incapable of performing his duties as special policeman for a period of three weeks. It is further alleged that the injury caused the plaintiff great physical pain, and permanently impaired his health. Plaintiff alleges special and general damages to the amount of $30,150, and asks judgment for that sum, with costs. The defendant, answering the complaint, denies each allegation thereof, and in addition to such denials pleads five separate defenses. These defenses are all, in effect, a justification by reason of unavoidable necessity. A trial resulted in a verdict and judgment for plaintiff for the sum of $3,143. To reverse this judgment, the cause is brought here by appeal.

        5
        Attorneys and Law Firms
        6

        Oscar Reuter and William Young, for appellant.

        7

        F. J. Hangs and S. S. Abbott, for appellee.

        8
        Opinion
        9

        HAYT, C. J. (after stating the facts).

        10

        It is admitted, or proven beyond controversy, that appellee received a gunshot wound at the hands of the appellant at the time and place designated in the complaint, and that, as the result of such wound, the appellee was seriously injured. It is further shown that the shooting occurred under the following circumstances: That Mr. Courvoisier, on the night in question, was asleep in his bed, in the second story of a brick building, situate at the corner of South Broadway and Dakota streets, in South Denver; that he occupied a portion of the lower floor of this building as a jewelry store. He was aroused from his bed, shortly after midnight, by parties shaking or trying to open the door of the jewelry store. These parties, when asked by him as to what they wanted, insisted upon being admitted, and, upon his refusal to comply with this request, they used profane and abusive epithets towards him. Being unable to gain admission, they broke some signs upon the front of the building, and then entered the building by another entrance, and, passing upstairs, commenced knocking upon the door of a room where defendant's sister was sleeping. Courvoisier partly dressed himself, and, taking his revolver, went upstairs, and expelled the intruders from the building. In doing this he passed downstairs, and out on the sidewalk, as far as the entrance to his store, which was at the corner of the building. The parties expelled from the building, upon reaching the rear of the store, were joined by two or three others. In order to frighten these parties away, the defendant fired a shot in the air; but, instead of retreating, they passed around to the street in front, throwing stones and brickbats at the defendant, whereupon he fired a second, and perhaps a third, shot. The first shot fired attracted the attention of plaintiff, Raymond, and two deputy sheriffs, who were at the tramway depot across the street. These officers started towards Mr. Courvoisier, who still continued to shoot; but two of them stopped, when they reached the men in the street, for the purpose of arresting them, Mr. Raymond alone proceeding towards the defendant, calling out to him that he was an officer, and to stop shooting. Although the night was dark, the street was well lighted by electricity, and, when the officer approached him, defendant shaded his eyes, and, taking deliberate aim, fired, causing the injury complained of. The plaintiff's theory of the case is that he was a duly-authorized police officer, and in the discharge of his duties at the time; that the defendant was committing a breach of the peace; and that the defendant, knowing him to be a police officer, recklessly fired the shot in question. The defendant claims that the plaintiff was approaching him at the time in a threatening attitude, and that the surrounding circumstances were such as to cause a reasonable man to believe that his life was in danger, and that it was necessary to shoot in selfdefense, and that defendant did so believe at the time of firing the shot.

        11

        The first error argued brings up for review the action of the district court in overruling a challenge interposed by the defendant to the juror Gibbons. The ground of this challenge will appear from the following: ‘Q. Have you served as a juror within the year last past? A. I was called a few weeks ago on one case in the county court. Q. As a talesmen? A. Yes, sir. The Court: When did you serve, Mr. Gibbons? A. A few weeks ago. The Court: Since the 1st of January? A. Yes, sir.’ The statute relied upon to support the challenge reads as follows: ‘The fact that any juror in any district or county court shall have served as a juror of the regular panel, or as talesman, in either of said courts at any time within the year next preceding shall be a sufficient excuse for such juror from service in the same court and may also be ground for challenge for cause to such individual juror.’ Sess. Laws 1889, p. 220, § 1. The statute limits the exception to service a second time within the year in the same court, and we think it was likewise intended to thus restrict this ground of challenge for cause. This has been the uniform practice under the statute, and we think it must be upheld as the obvious meaning of the act.

        12

        The second error assigned is upon the overruling of defendant's objections to certain hypothetical questions propounded by plaintiff to medical experts. These questions called for the opinion of the witnesses as to the natural result of the wound received by plaintiff. It is claimed that the questions do not describe the wound with sufficient certainty, and that the evidence of the extent of the injury is not sufficient to form a basis for any hypothetical questions, or for expert opinions upon the probable effects of the wound. We think the objections to these questions were properly overruled. The questions contain such a description of the wound as is easily understood by the lay mind, and the answers show that it was fully understood by the experts. The questions are framed upon the assumption that the evidence tended to prove certain facts. This assumption, being within the probable or possible range of the evidence, is permissible. Jackson v. Burnham, 20 Colo. 532, 39 Pac. 577.

        13

        The third assignment of error challenges the refusal of the court to permit witnesses for the defendant to testify as to whether or not, as a result of a criminal prosecution, one of the participants was convicted of ‘throwing a stone and hitting Mr. Courvoisier that night.’ The objection to this question was properly sustained. If proof of such conviction was admissible, the record is the best evidence thereof, except in the instances specified by statute (Mills' Ann. St. § 4822); but, as this action is between other parties, even the record is not admissible in this case. It was attempted to prove, by the witness Reed, who was at the time marshal of the town of South Denver, that the neighborhood in the immediate vicinity of defendant's house had been the scene of frequent robberies and disturbances shortly prior to this shooting. This evidence was offered for the purpose oe justifying the defendant's action. It is claimed that conduct which would cause no apprehension in a quiet and peaceful neighborhood would naturally and reasonably excite alarm if disturbances and breaches of the peace were frequent. We think, however, the court was justified in refusing this evidence. Its tendency is to raise collateral issues, and thereby divert the attention of the jury.

        14

        Under the fourth assignment of error it is claimed that evidence of the financial standing of the defendant was not admissible. If the jury believed, from the evidence, that the shooting was done with malice, or that the injury was the result of a wanton and reckless disregard of plaintiff's rights, and not in necessary self-defense, exemplary damages might have been awarded; and, wherever such damages are permissible, the financial condition of the defendant may be shown. In a number of cases, commencing with Murphy v. Hobbs, 7 Colo. 541, 5 Pac. 119, it has been held that, in civil actions for injuries resulting from torts, exemplary damages, as a punishment, were not permissible, if the offense is punishable under the criminal laws. These decisions were based upon the common law. In 1889 the legislature provided, by statute, that exemplary damages may be given in certain cases. Before the passage of this act the question was one upon which the courts disagreed, but the statute has now settled the practice in this state.

        15

        The next error assigned relates to the instructions given by the court to the jury, and to those requested by the defendant and refused by the court. The second instruction given by the court was clearly erroneous. The instruction is as follows: ‘The court instructs you that if you believe, from the evidence, that, at the time the defendant shot the plaintiff, the plaintiff was not assaulting the defendant, then your verdict should be for the plaintiff.’ The vice of this instruction is that it excluded from the jury a full consideration of the justification claimed by the defendant. The evidence for the plaintiff tends to show that the shooting, if not malicious, was wanton and reckless; but the evidence for the defendant tends to show that the circumstances surrounding him at the time of the shooting were such as to lead a reasonable man to believe that his life was in danger, or that he was in danger of receiving great bodily harm at the hands of the plaintiff, and the defendant testified that he did so believe. He swears that his house was invaded, shortly after midnight, by two men, whom he supposed to be burglars; that, when ejected, they were joined on the outside by three or four others; that the crowd so formed assaulted him with stones and other missiles, when, to frighten them away, he shot into the air; that, instead of going away, some one approached him from the direction of the crowd; that he supposed this person to be one of the rioters, and did not ascertain that it was the plaintiff until after the shooting. He says that he had had no previous acquaintance with plaintiff; that he did not know that he was a police officer, or that there were any police officers in the town of South Denver; that he heard nothing said at the time, by the plaintiff or any one else, that caused him to think the plaintiff was an officer; that his eyesight was greatly impaired, so that he was obliged to use glasses; and that he was without glasses at the time of the shooting, and for this reason could not see distinctly. He then adds: ‘I saw a man come away from the bunch of men, and come up towards me, and as I looked around I saw this man put his hand to his hip pocket. I didn't think I had time to jump aside, and therefore turned around and fired at him. I had no doubts but it was somebody that had come to rob me, because, some weeks before, Mr. Wilson's store was robbed. It is next door to mine.’

        16

        By this evidence two phases of the transaction are presented for consideration: First. Was the plaintiff assaulting the defendant at the time plaintiff was shot? Second. If not, was there sufficient evidence of justification for the consideration of the jury? The first question was properly submitted, but the second was excluded by the instruction under review. The defendant's justification did not rest entirely upon the proof of assault by the plaintiff. A riot was in progress, and the defendant swears that he was attacked with missiles, hit with stones, brickbats, etc.; that he shot plaintiff, supposing him to be one of the rioters. We must assume these facts as established in reviewing the instruction, as we cannot say that the jury might have found had this evidence been submitted to them under a proper charge. By the second instruction, the conduct of those who started the fracas was eliminated from the consideration of the jury. If the jury believed, from the evidence, that the defendant would have been justified in shooting one of the rioters, had such person advanced towards him, as did the plaintiff, then it became important to determine whether the defendant mistook plaintiff for one of the rioters; and, if such a mistake was in fact made, was it excusable, in the light of all the circumstances leading up to and surrounding the commission of the act? If these issues had been resolved by the jury in favor of the defendant, he would have been entitled to a judgment. Morris v. Platt, 32 Conn. 75; Patten v. People, 18 Mich. 318; Kent v. Cole, 84 Mich. 579, 48 N. W. 168; Higgins v. Minaghan, 76 Wis. 298, 45 N. W. 127. The opinion the first of the cases above cited contains an exhaustive review of the authorities, and is very instructive. The action was for damages resulting from a pistol-shot wound. The defendant justified under the plea of self-defense. The proof for the plaintiff tended to show that he was a mere bystander at a riot, when he received a shot aimed at another; and the court held that, if the defendant was justified in firing the shot at his antagonist, he was not liable to the plaintiff, for the reason that the act of shooting was lawful under the circumstances. Where a defendant, in a civil action like the one before us, attempts to justify on a plea of necessary self-defense, he must satisfy the jury, not only that he acted honestly in using force, but that his fears were reasonable under the circumstances, and also as to the reasonableness of the means made use of. In this case, perhaps, the verdict would not have been different, had the jury been properly instructed; but it might have been, and therefore the judgment must be reversed. Reversed.

        17

        Parallel Citations

        18

        47 P. 284

    • 2.3 IV.C. Preservation of Property

      • 2.3.1 Ploof v. Putnam--"The Private Island in the Storm"

        In order to accommodate plaintiff's need to protect his/her own life or property, should society privilege him/her with the right to interfere with another's property?

        1
        71 A. 188
        Supreme Court of Vermont.
        PLOOF
        v.
        PUTNAM.
        Oct. 2, 1908.
        2

        Exceptions from Chittenden County Court; Seneca Haselton, Judge.

        3

        Action by Sylvester A. Ploof against Henry W. Putnam. Heard on demurrer to declaration. Demurrer overruled, and declaration adjudged sufficient, and defendant excepted. Judgment affirmed, and cause remanded.

        5
        Attorneys and Law Firms
        6

        Martin S. Vilas and Cowles & Moulton, for plaintiff.

        7

        Batchelder & Bates, for defendant.

        9
        Opinion
        10

        MUNSON, J.

        11

        It is alleged as the ground on recovery that on the 13th day of November 1904, the defendant was the owner of a certain island in Lake Champlain, and of a certain dock attached thereto, which island and dock were then in charge of the defendant's servant; that the plaintiff was then possessed of and sailing upon said lake a certain loaded sloop, on which were the plaintiff and his wife and two minor children; that there then arose a sudden and violent tempest, whereby the sloop and the property and persons therein were placed in great danger of destruction; that, to save these from destruction or injury, the plaintiff was compelled to, and did, moor the sloop to defendant's dock; that the defendant, by his servant, unmoored the sloop, whereupon it was driven upon the shore by the tempest, without the plaintiff's fault; and that the sloop and its contents were thereby destroyed, and the plaintiff and his wife and children cast into the lake and upon the shore, receiving injuries. This claim is set forth in two counts-one in trespass, charging that the defendant by his servant with force and arms willfully and designedly unmoored the sloop; the other in case, alleging that it was the duty of the defendant by his servant to permit the plaintiff to moor his sloop to the dock, and to permit it to remain so moored during the continuance of the tempest, but that the defendant by his servant, in disregard of this duty, negligently, carelessly, and wrongfully unmoored the sloop. Both counts are demurred to generally.

        12

        There are many cases in the books which hold that necessity, and an inability to control movements inaugurated in the proper exercise of a strict right, will justify entries upon land and interferences with personal property that would otherwise have been trespasses. A reference to a few of these will be sufficient to illustrate the doctrine. In Miller v. Fandrye, Poph. 161, trespass was brought for chasing sheep, and the defendant pleaded that the sheep were trespassing upon his land, and that he with a little dog chased them out, and that, as soon as the sheep were off his land, he called in the dog. It was argued that, although the defendant might lawfully drive the sheep from his own ground with a dog, he had no right to pursue them into the next ground; but the court considered that the defendant might drive the sheep from his land with a dog, and that the nature of a dog is such that he cannot be withdrawn in an instant, and that, as the defendant had done his best to recall the dog, trespass would not lie. In trespass of cattle taken in A., defendant pleaded that he was seised of C. and found the cattle there damage feasant, and chased them towards the pound, and they escaped from him and went into A., and he presently retook them; and this was held a good plea. 21 Edw. IV, 64; Vin. Ab. Trespass, H. a, 4, pl. 19. If one have a way over the land of another for his beasts to pass, and the beasts, being properly driven, feed the grass by morsels in passing, or run out of the way and are promptly pursued and brought back, trespass will not lie. See Vin. Ab. Trespass, K. a, pl. 1. A traveler on a highway who finds it obstructed from a sudden and temporary cause may pass upon the adjoining land without becoming a trespasser because of the necessity. Henn's Case, W. Jones, 296; Campbell v. Race, 7 Cush. (Mass.) 408, 54 Am. Dec. 728; Hyde v. Jamaica, 27 Vt. 443 (459); Morey v. Fitzgerald, 56 Vt. 487, 48 Am. Rep. 811. An entry upon land to save goods which are in danger of being lost or destroyed by water or fire is not a trespass. 21 Hen. VII, 27; Vin. Ab. Trespass, H. a, 4, pl. 24, K. a, pl. 3. In Proctor v. Adams, 113 Mass. 376, 18 Am. Rep. 500, the defendant went upon the plaintiff's beach for the purpose of saving and restoring to the lawful owner a boat which had been driven ashore, and was in danger of being carried off by the sea; and it was held no trespass. See, also, Dunwich v. Sterry, 1 B. & Ad. 831.

        13

        This doctrine of necessity applies with special force to the preservation of human life. One assaulted and in peril of his life may run through the close of another to escape from his assailant. 37 Hen. VII, pl. 26. One may sacrifice the personal property of another to save his life or the lives of his fellows. In Mouse's Case, 12 Co. 63, the defendant was sued for taking and carrying away the plaintiff's casket and its contents. It appeared that the ferryman of Gravesend took 47 passengers into his barge to pass to London, among whom were the plaintiff and defendant; and the barge being upon the water a great tempest happened, and a strong wind, so that the barge and all the passengers were in danger of being lost if certain ponderous things were not cast out, and the defendant thereupon cast out the plaintiff's casket. It was resolved that in case of necessity, to save the lives of the passengers, it was lawful for the defendant, being a passenger, to cast the plaintiff's casket out of the barge; that, if the ferryman surcharge the barge, the owner shall have his remedy upon the surcharge against the ferryman, but that if there be no surcharge, and the danger accrue only by the act of God, as by tempest, without fault of the ferryman, every one ought to bear his loss to safeguard the life of a man.

        14

        It is clear that an entry upon the land of another may be justified by necessity, and that the declaration before us discloses a necessity for mooring the sloop. But the defendant questions the sufficiency of the counts because they do not negative the existence of natural objects to which the plaintiff could have moored with equal safety. The allegations are, in substance, that the stress of a sudden and violent tempest compelled the plaintiff to moor to defendant's dock to save his sloop and the people in it. The averment of necessity is complete, for it covers not only the necessity of mooring to the dock; and the details of the situation which created this necessity, whatever the legal requirements regarding them, are matters of proof, and need not be alleged. It is certain that the rule suggested cannot be held applicable irrespective of circumstance, and the question must be left for adjudication upon proceedings had with reference to the evidence or the charge.

        15

        The defendant insists that the counts are defective, in that they fail to show that the servant in casting off the rope was acting within the scope of his employment. It is said that the allegation that the island and dock were in charge of the servant does not imply authority to do an unlawful act, and that the allegations as a whole fairly indicate that the servant unmoored the sloop for a wrongful purpose of his own, and not by virtue of any general authority or special instruction received from the defendant. But we think the counts are sufficient in this respect. The allegation is that the defendant did this by his servant. The words “willfully, and designedly” in one count, and “negligently, carelessly, and wrongfully” in the other, are not applied to the servant, but to the defendant acting through the servant. The necessary implication is that the servant was acting within the scope of his employment. 13 Ency. P. & Pr. 922; Voegeli v. Pickel Marble, etc., Co., 49 Mo. App. 643; Wabash Ry. Co. v. Savage, 110 Ind. 156, 9 N. E. 85. See, also, Palmer v. St. Albans, 60 Vt. 427, 13 Atl. 569, 6 Am. St. Rep. 125.

        16

        Judgment affirmed and cause remanded.

        17
        Parallel Citations
        18

        71 A. 188, 20 L.R.A.N.S. 152, 130 Am.St.Rep. 1072, 15 Am.Ann.Cas. 1151

      • 2.3.2 Vincent v. Lake Erie Transp. Co.--"The Boat That Slammed Against the Dock"

        Should defendants be privileged in protecting their own property at the expense of another’s property? If so, does the court “demand” anything from the plaintiff in exchange for the privilege?

        1
        124 N.W. 221
        Supreme Court of Minnesota.
        VINCENT et al.
        v.
        LAKE ERIE TRANSP. CO.
        Jan. 14, 1910.
        2

        Appeal from District Court, St. Louis County; J. D. Ensign, Judge.

        3

        Action by R. C. Vincent and others against the Lake Erie Transportation Company. Verdict for plaintiffs. From an order denying a new trial, defendant appeals. Affirmed.

        4
        Syllabus by the Court
        5

        Where, under stress of weather, a master, for the purpose of preserving his vessel, maintains her moorings to a dock after the full discharge of the vessel's cargo, and the dock is damaged by the striking and pounding of the vessel, the dock owner may recover from the shipowner for the injury sustained, although prudent seamanship required the master to follow the course pursued.

        7
        Attorneys and Law Firms
        8

        H. R. Spencer, for appellant.

        9

        Alford & Hunt, for respondents.

        11
        Opinion
        12

        O'BRIEN, J.

        13

        The steamship Reynolds, owned by the defendant, was for the purpose of discharging her cargo on November 27, 1905, moored to plaintiff's dock in Duluth. While the unloading of the boat was taking place a storm from the northeast developed, which at about 10 o'clock p. m., when the unloading was completed, had so grown in violence that the wind was then moving at 50 miles per hour and continued to increase during the night. There is some evidence that one, and perhaps two, boats were able to enter the harbor that night, but it is plain that navigation was practically suspended from the hour mentioned until the morning of the 29th, when the storm abated, and during that time no master would have been justified in attempting to navigate his vessel, if he could avoid doing so. After the discharge of the cargo the Reynolds signaled for a tug to tow her from the dock, but none could be obtained because of the severity of the storm. If the lines holding the ship to the dock had been cast off, she would doubtless have drifted away; but, instead, the lines were kept fast, and as soon as one parted or chafed it was replaced, sometimes with a larger one. The vessel lay upon the outside of the dock, her bow to the east, the wind and waves striking her starboard quarter with such force that she was constantly being lifted and thrown against the dock, resulting in its damage, as found by the jury, to the amount of $500.

        14

        We are satisfied that the character of the storm was such that it would have been highly imprudent for the master of the Reynolds to have attempted to leave the dock or to have permitted his vessel to drift a way from it. One witness testified upon the trial that the vessel could have been warped into a slip, and that, if the attempt to bring the ship into the slip had failed, the worst that could have happened would be that the vessel would have been blown ashore upon a soft and muddy bank. The witness was not present in Duluth at the time of the storm, and, while he may have been right in his conclusions, those in charge of the dock and the vessel at the time of the storm were not required to use the highest human intelligence, nor were they required to resort to every possible experiment which could be suggested for the preservation of their property. Nothing more was demanded of them than ordinary prudence and care, and the record in this case fully sustains the contention of the appellant that, in holding the vessel fast to the dock, those in charge of her exercised good judgment and prudent seamanship.

        15

        It is claimed by the respondent that it was negligence to moor the boat at an exposed part of the wharf, and to continue in that position after it became apparent that the storm was to be more than usually severe. We do not agree with this position. The part of the wharf where the vessel was moored appears to have been commonly used for that purpose. It was situated within the harbor at Duluth, and must, we think, be considered a proper and safe place, and would undoubtedly have been such during what would be considered a very severe storm. The storm which made it unsafe was one which surpassed in violence any which might have reasonably been anticipated.

        16

        The appellant contends by ample assignments of error that, because its conduct during the storm was rendered necessary by prudence and good seamanship under conditions over which it had no control, it cannot be held liable for any injury resulting to the property of others, and claims that the jury should have been so instructed. An analysis of the charge given by the trial court is not necessary, as in our opinion the only question for the jury was the amount of damages which the plaintiffs were entitled to recover, and no complaint is made upon that score.

        17

        The situation was one in which the ordinary rules regulating properly rights were suspended by forces beyond human control, and if, without the direct intervention of some act by the one sought to be held liable, the property of another was injured, such injury must be attributed to the act of God, and not to the wrongful act of the person sought to be charged. If during the storm the Reynolds had entered the harbor, and while there had become disabled and been thrown against the plaintiffs' dock, the plaintiffs could not have recovered. Again, if which attempting to hold fast to the dock the lines had parted, without any negligence, and the vessel carried against some other boat or dock in the harbor, there would be no liability upon her owner. But here those in charge of the vessel deliberately and by their direct efforts held her in such a position that the damage to the dock resulted, and, having thus preserved the ship at the expense of the dock, it seems to us that her owners are responsible to the dock owners to the extent of the injury inflicted.

        18

        In Depue v. Flatau, 100 Minn. 299, 111 N. W. 1, 8 L. R. A. (N. S.) 485, this court held that where the plaintiff, while lawfully in the defendants' house, became so ill that he was incapable of traveling with safety, the defendants were responsible to him in damages for compelling him to leave the premises. If, however, the owner of the premises had furnished the traveler with proper accommodations and medical attendance, would he have been able to defeat an action brought against him for their reasonable worth?

        19

        In Ploof v. Putnam, 71 Atl. 188, 20 L. R. A. (N. S.) 152, the Supreme Court of Vermont held that where, under stress of weather, a vessel was without permission moored to a private dock at an island in Lake Champlain owned by the defendant, the plaintiff was not guilty of trespass, and that the defendant was responsible in damages because his representative upon the island unmoored the vessel, permitting it to drift upon the shore, with resultant injuries to it. If, in that case, the vessel had been permitted to remain, and the dock had suffered an injury, we believe the shipowner would have been held liable for the injury done.

        20

        Theologians hold that a starving man may, without moral guilt, take what is necessary to sustain life; but it could hardly be said that the obligation would not be upon such person to pay the value of the property so taken when he became able to do so. And so public necessity, in times of war or peace, may require the taking of private property for public purposes; but under our system of jurisprudence compensation must be made.

        21

        Let us imagine in this case that for the better mooring of the vessel those in charge of her had appropriated a valuable cable lying upon the dock. No matter how justifiable such appropriation might have been, it would not be claimed that, because of the overwhelming necessity of the situation, the owner of the cable could not recover its value.

        22

        This is not a case where life or property was menaced by any object or thing belonging to the plaintiff, the destruction of which became necessary to prevent the threatened disaster. Nor is it a case where, because of the act of God, or unavoidable accident, the infliction of the injury was beyond the control of the defendant, but is one where the defendant prudently and advisedly availed itself of the plaintiffs' property for the purpose of preserving its own more valuable property, and the plaintiffs are entitled to compensation for the injury done.

        23

        Order affirmed.

        24

        LEWIS, J.

        25

        I dissent. It was assumed on the trial before the lower court that appellant's liability depended on whether the master of the ship might, in the exercise of reasonable care, have sought a place of safety before the storm made it impossible to leave the dock. The majority opinion assumes that the evidence is conclusive that appellant moored its boat at respondent's dock pursuant to contract, and that the vessel was lawfully in position at the time the additional cables were fastened to the dock, and the reasoning of the opinion is that, because appellant made use of the stronger cables to hold the boat in position, it became liable under the rule that it had voluntarily made use of the property of another for the purpose of saving its own. In my judgment, if the boat was lawfully in position at the time the storm broke, and the master could not, in the exercise of due care, have left that position without subjecting his vessel to the hazards of the storm, then the damage to the dock, caused by the pounding of the boat, was the result of an inevitable accident. If the master was in the exercise of due care, he was not at fault. The reasoning of the opinion admits that if the ropes, or cables, first attached to the dock had not parted, or if, in the first instance, the master had used the stronger cables, there would be no liability. If the master could not, in the exercise of reasonable care, have anticipated the severity of the storm and sought a place of safety before it became impossible, why should he be required to anticipate the severity of the storm, and, in the first instance, use the stronger cables?

        26

        I am of the opinion that one who constructs a dock to the navigable line of waters, and enters into contractual relations with the owner of a vessel to moor at the same, takes the risk of damage to his dock by a boat caught there by a storm, which event could not have been avoided in the exercise of due care, and further, that the legal status of the parties in such a case is not changed by renewal of cables to keep the boat from being cast adrift at the mercy of the tempest.

        27

        JAGGARD, J., concurs herein.

        29

        Parallel Citations

        30

        124 N.W. 221, 27 L.R.A.N.S. 312

    • 2.4 IV.D. Beyond the Common Law - Statutory Exceptions and Constitutional Protections

      • 2.4.1 Barbara A. v. John G.--"The Lying, Impregnating Attorney"

        How should the court evaluate defenses that come from different sources of law?

        1

        193 Cal.Rptr. 422Court of Appeal, First District, Division 3, California.

        BARBARA A., Cross-complainant and Appellant,

        v.

        JOHN G., Cross-defendant and Respondent.

        A012960.Civ. 50953.July 26, 1983.

        Hearing Denied Sept. 29, 1983.
        2

        Attorney filed suit against female client seeking to recover attorney fees for representation in a family law matter. Female client filed cross complaint seeking to recover damages for injuries sustained when she suffered an ectopic pregnancy after she engaged in intercourse with the attorney who made a false representation that “I can't possibly get anyone pregnant.” The Superior Court, Napa County, Raymond J. Sherwin, J., dismissed the cross complaint, and appeal was taken. The Court of Appeal, Barry-Deal, J., held that: (1) the female client could maintain her action on theories of deceit and battery; (2) the action was not barred by the statute prohibiting a cause of action for seduction; (3) the rule that one parent cannot maintain an action against the other for wrongful birth of a child, even if the woman misrepresented whether she was using a birth control method, did not bar the suit; (4) the constitutional right to privacy did not shield the attorney from liability; and (5) the former client would be required to prove the existence of a confidential relationship and, if that relationship was established, the attorney would then have the burden of proving that consent to intercourse was informed and freely given in battery cause of action or, in the alternative, that the client's reliance was unjustified in the misrepresentation cause of action.

        3

        Judgment reversed.

        4

        Scott, Acting P.J., dissented with an opinion.

        6

        Attorneys and Law Firms

        7

        Mary Cynthia Dunlap, San Francisco, for cross-complainant and appellant.

        8

        Long & Levit, Ronald E. Mallen, Donald W. Carlson, Marsha L. Morrow, San Francisco, for cross-defendant and respondent.

        9
        Opinion
        10

        BARRY–DEAL, Associate Justice.

        11

        The issue presented in this appeal is whether a woman (appellant) suffering injuries from an ectopic pregnancy [1] has a cause of action in tort against the responsible man (respondent) for his misrepresentations of infertility. The trial court ruled that no cause of action would lie and granted respondent's motion for judgment on the pleadings. We reverse the judgment.

        12

        I. Procedural Background

        13

        Respondent, an attorney, filed an action in municipal court against appellant for $1,520 in fees for representing her in a family law matter. Appellant filed her answer and a cross-complaint for damages alleging, inter alia, fraud and legal malpractice, and the action was transferred to the superior court. After a demurrer to the cross-complaint was filed, appellant by stipulation filed her first amended cross-complaint, which is the subject of this appeal. After several hearings on the demurrer to the amended cross-complaint, the court (Kongsgaard, J.) sustained a demurrer to the count alleging intentional/negligent infliction of emotional distress and dismissed the two counts alleging legal malpractice for appellant's failure to amend. [2] The court overruled the demurrer to the count alleging battery and the one alleging intentional misrepresentation, in spite of respondent's argument that an action was barred by Civil Code section 43.5, the “anti-heart balm” statute. [3]

        15

        II. Standard of Review and Factual Allegations

        16

        A motion for judgment on the pleadings based on failure to state a cause of action has a function similar to that of a general demurrer. (See 4 Witkin, Cal Procedure (2d ed. 1971) Proceedings Without Trial, §§ 161–170, pp. 2816–2823.) On review of the judgment in either case, all material facts alleged in the pleading under attack must be accepted as true. [4] (Marvin v. Marvin (1976) 18 Cal.3d 660, 666, 134 Cal.Rptr. 815, 557 P.2d 106; Kachig v. Boothe (1971) 22 Cal.App.3d 626, 630, 99 Cal.Rptr. 393.) As a reviewing court, we, of course, are not bound by the trial court's determination on whether the alleged facts state a cause of action. With these rules in mind, we summarize the essential facts alleged in appellant's first amended cross-complaint.

        17

        Appellant and respondent met about April 1978. Appellant retained respondent, an attorney, to represent her in a post-dissolution proceeding for modification of spousal support and child support for her three children; the legal relationship was in existence at the time of the alleged events. On two occasions, June 25 and June 30, 1978, she and respondent had sexual intercourse with each other. Before they engaged in sexual intercourse the first time, appellant demanded that respondent use a contraceptive device, i.e., a condom, and explained that for emotional and financial reasons she did not want to become pregnant. Appellant further told respondent “... that she would not engage in sexual intercourse with him if there was any likelihood of her becoming pregnant; ...” Respondent told appellant not to worry, saying, “ ‘I can't possibly get anyone pregnant.’ ” She understood this to mean that he was sterile by nature or as the result of a vasectomy.

        18

        Respondent's representation about his procreative inability was false, and he knew it was false. It was made with the intent to induce appellant to engage in sexual intercourse, protected or not. Appellant, relying on respondent's assurance of his sterility, consented to and did engage in sexual intercourse with respondent. The attorney-client relationship produced in appellant a sense of trust in respondent, and she justifiably relied on his representations.

        19

        As a result of sexual intercourse with respondent, appellant became pregnant. The pregnancy was determined to be tubal, and, as a consequence, appellant was forced to undergo surgery to save her life. Her Fallopian tube was removed, and she was rendered sterile by the surgery. [5] She suffered physical, emotional, and financial injuries as a result of the pregnancy.

        20

        III. Cause of Action on Theories of Battery or Deceit

        21

        Based on the alleged facts, appellant has stated a cause of action in battery, i.e., an unconsented invasion of her interest in freedom from intentional, unlawful, and harmful or offensive contact with her person. (See Prosser, Torts (4th ed. 1971) § 9, pp. 34–37 [hereafter cited as Prosser]; 4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 194, pp. 2482–2483.) Consent to an act, otherwise a battery, normally vitiates the wrong. (Delia S. v. Torres (1982) 134 Cal.App.3d 471, 480, 184 Cal.Rptr. 787; Prosser, supra, § 18, p. 101.) However, appellant has alleged alternate grounds for invalidating her consent and rendering respondent's act a battery: (1) that the act of impregnation exceeded the scope of the consent (see Cobbs v. Grant (1972) 8 Cal.3d 229, 239–240, 104 Cal.Rptr. 505, 502 P.2d 1; Estrada v. Orwitz (1946) 75 Cal.App.2d 54, 57, 170 P.2d 43), and (2) that the consent to intercourse was fraudulently induced (Prosser, supra, § 18, p. 105; see Butler v. Collins (1859) 12 Cal. 457, 463). As she has alleged physical, emotional, and financial damage proximately caused by the wrongful touching, appellant's cause of action for battery was sufficiently pleaded.

        22

        As an alternative theory for recovery in tort, appellant pleaded deceit, an action sanctioned by Civil Code section 1709, which provides: “One who willfully deceives another with intent to induce him [or her] to alter his [or her] position to his [or her] injury or risk, is liable for any damage which he [or she] thereby suffers.” Deceit, within the meaning of section 1709, is defined by Civil Code section 1710 [6] to include both fraudulent misrepresentations (“The suggestion, as a fact, of that which is not true, by one who does not believe it to be true ...”) and negligent misrepresentations (“The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true ...”). (See, generally, 4 Witkin, Summary of Cal.Law, Torts, supra, §§ 445–482, pp. 2710–2744; Prosser,supra, ch. 18, §§ 105–110, pp. 683–736; Rest.2d Torts, §§ 310, 557A.)In pleading a cause of action for deceit, a plaintiff must specifically plead the following elements: (1) a false representation (ordinarily of a fact) made by the defendant; (2) knowledge or belief on the part of the defendant that the representation is false, or that the representation was made by defendant without reasonable grounds for believing its truth; (3) an intention to induce the plaintiff to act or to refrain from action in reliance upon the misrepresentation; (4) justifiable reliance upon the representation by the plaintiff; (5) damage to the plaintiff, resulting from such reliance. (See Prosser, supra, § 105, pp. 685–686; Gagne v. Bertran (1954) 43 Cal.2d 481, 487–489, 275 P.2d 15; O'Hara v. Western Seven Trees Corp. (1977) 75 Cal.App.3d 798, 804–805, 142 Cal.Rptr. 487.)

        23

        Appellant has pleaded all the essential allegations, as set forth above, of a cause of action for deceit. Respondent's challenge to the sufficiency of the pleading, i.e., “She does not allege that she asked him what he meant by that ambiguous statement [‘I can't possibly get anyone pregnant’] ...,” is meritless. His proposed allegation relates to proof of justifiable reliance at trial, not to sufficiency of the pleading.

        24
        IV. Basic Rule
        25

        It is a fundamental principle of our system of jurisprudence that for every legal wrong there is a remedy (Civ.Code, § 3523), and that an injured party should be compensated for all damage proximately caused by the wrongdoer unless a departure from the basic principle is mandated by a legislative exception or by strong public policy. (Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 433, 58 Cal.Rptr. 13, 426 P.2d 173; Murdock v. Murdock (1920) 49 Cal.App. 775, 782–783, 194 P. 762, citing Civ.Code, §§ 1667, 1708, 1709, 3523, and 2224; cf. Rowland v. Christian (1968) 69 Cal.2d 108, 111–112, 70 Cal.Rptr. 97, 443 P.2d 561, characterizing Civ.Code, § 1714, as a basic principle of tort law.)

        26
        V. The “Anti-Heart Balm” Statute
        27

        Respondent asserts that appellant's action comes within the statutory exception declared in Civil Code section 43.5 and is thus barred. We find that statute is not applicable. Section 43.5 provides, in relevant part, “No cause of action arises for: ... [¶] (c) Seduction ....” The word “[s]eduction,” as used in the statute, is a term of art involving elements substantively different from those alleged by appellant.

        28

        “Seduction imports the idea of illicit intercourse accomplished by the use of arts, persuasions, or wiles to overcome the resistance of a female who is not disposed of her own volition to step aside from the paths of virtue. [Citation.]” (Davis v. Stroud (1942) 52 Cal.App.2d 308, 317, 126 P.2d 409.) It is no longer possible for two consenting adults in the State of California to engage in “illicit intercourse.” (See Note, California “Consenting Adults” Law: The Sex Act in Perspective (1976) 13 San Diego L.Rev. 439.)

        29

        The old action for seduction required that the woman was “... chaste and virtuous at the time of the alleged seduction ...” (Davis v. Stroud, supra, 52 Cal.App.2d at p. 316, 126 P.2d 409), and it was used primarily to protect young, inexperienced women who had succumbed to the sexual advances of older men. (See Carter v. Murphy (1938) 10 Cal.2d 547, 75 P.2d 1072.)

        30

        In the instant case appellant complains not because her virtue was violated or because she suffered humiliation and loss of reputation, but because the sexual act was unprotected and led to an ectopic pregnancy as a result of respondent's misrepresentation. The gravamen of the complaint in this situation is substantially different from an action for “[s]eduction,” which is indeed precluded by Civil Code section 43.5. [7] (Cf. Mack v. White (1950) 97 Cal.App.2d 497, 500, 218 P.2d 76.)

        31

        Nevertheless, respondent argues that the public policy considerations underlying the statutory bar to seduction actions are sound and are applicable to the case before us. He points out that seduction actions are “... fruitful sources of fraud and extortion because of the ease with which they may be employed to embarrass, harass and besmirch the reputation of one wholly innocent of wrongdoing ...,” quoting from Ikuta v. Ikuta (1950) 97 Cal.App.2d 787, 789, 218 P.2d 854. He predicts a multitude of unfounded or fraudulent claims if appellant's claim is allowed.

        32

        Our Supreme Court has held that fear of unfounded or fraudulent claims is not a valid reason for disallowing a tort action predicated upon a meritorious claim. In Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, the court stated: “[t]he possibility that some fraud will escape detection does not justify an abdication of the judicial responsibility to award damages for sound claims: if it is ‘to be conceded that our procedural system for the ascertainment of truth is inadequate to defeat fraudulent claims ..., the result is a virtual acknowledgment that the courts are unable to render justice in respect to them.’ [Citation.]” (Id., at p. 737, 69 Cal.Rptr. 72, 441 P.2d 912.) The reasoning is sound and is applicable to the case before us.

        33
        VI. Inapplicability of Stephen K.
        34

        Appellant argues that the trial court mistakenly relied on Stephen K. v. Roni L., supra, 105 Cal.App.3d 640, 164 Cal.Rptr. 618, because that case is factually distinguishable and the public policy considerations underlying the two actions differ. Respondent reiterates that appellant's action contravenes public policy “... to eliminate governmental intervention into private sexual dealings ...,” as enunciated in Stephen K.

        35

        In that case, Stephen, the defendant in a paternity action, after admitting paternity, cross-complained against Roni, the mother of the child, claiming that she had falsely represented that she was taking birth control pills. The father alleged that in reliance upon such representation, he engaged in sexual intercourse with Roni, which eventually resulted in the birth of a baby unwanted by the father. He further alleged that as a proximate result of the misrepresentation, he had become obligated to support the child financially and had suffered mental distress.

        36

        In affirming the dismissal of Stephen's cross-complaint, the court held that Roni's misrepresentation was not actionable and gave rise to no liability. (Id., at p. 642, 164 Cal.Rptr. 618.) In summary, the court concluded that “... the circumstances and the highly intimate nature of the relationship wherein the false representations may have occurred, are such that a court should not define any standard of conduct therefor.” (Id., at p. 643, 164 Cal.Rptr. 618.) The court added that to “... supervise the promises made between two consenting adults as to the circumstances of their private sexual conduct ... would encourage unwarranted governmental intrusion into matters affecting the individual's right to privacy ...,” and that “... as a matter of public policy the practice of birth control, if any, engaged in by two partners in a consensual sexual relationship is best left to the individuals involved, free from any governmental interference.” (Id., at pp. 644–645, 164 Cal.Rptr. 618.)

        37

        The facts in Stephen K. and in the case before us, both based on deceit, are obviously similar. A significant distinction between the cases, however, lies in the element of damage. In essence, Stephen was seeking damages for the “wrongful birth” of his child [8] resulting in support obligations and alleged damages for mental suffering. Here, no child is involved; appellant is seeking damages for severe injury to her own body.

        38

        Although the Stephen K. court alluded to Stephen's claim as separate and apart from the issue of either parent's obligation to raise and support the child, it reached its decision without attempting to resolve the problem of the mother's reduced financial ability to support the child if she were required to pay damages to the father. We think this concern over the child, and not governmental intrusion into private sexual matters, which we discuss below, is the central issue in Stephen K. and compels different public policy considerations.

        39

        Civil Code section 196a imposes on the natural father as well as the natural mother of a child the obligation to give the child support and education suitable to his or her circumstances. To assess damages against the mother for false representations about birth control would have the practical effect of reducing or eliminating support from the father by way of offset. Erasing much or all of the father's financial support, to the detriment of the child, is clearly against public policy and the statutory mandate.

        40

        Further, we think it is not sound social policy to allow one parent to sue the other over the wrongful birth of their child. Using the child as the damage element in a tortious claim of one parent against the other could seldom, if ever, result in benefit to a child. [9] Such a lawsuit would indeed be strong evidence of parental rejection, which could only be emotionally detrimental to the child. Such an action, with its potential for engendering disharmony between a mother and father, would also be contrary to the spirit of the recent legislation providing for mediation between parents in order to reduce acrimony. (See Civ.Code, § 4607.)In short, we agree with the Stephen K. court that Roni's misrepresentation was not actionable, but we find that different policy reasons justify that result. The question remains, however, whether allowing appellant's action in the case before us encourages “... unwarranted governmental intrusion into matters affecting the individual's right to privacy ...” and thus contravenes public policy.

        41
        VII. Privacy Right Not Absolute[10]
        43

        The constitutional right to privacy extends to all matters relating to marriage, family, and sex. (People v. Belous (1969) 71 Cal.2d 954, 963, 80 Cal.Rptr. 354, 458 P.2d 194; Cal. Const., art. I, § 1; Stanley v. Georgia (1968) 394 U.S. 557, 564, 89 S.Ct. 1243, 1247–48, 22 L.Ed.2d 542; Griswold v. Connecticut (1965) 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510; Eisenstadt v. Baird (1972) 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349.) The right to privacy, however, is not absolute, and governmental intervention in matters affecting an individual's right to privacy in sexual matters has been sanctioned in both criminal and civil law.

        44

        California has adopted a general scheme for the regulation of the criminal aspects of sexual activity and has determined when sexual intercourse between persons not married to each other shall be criminal. (In re Lane (1962) 58 Cal.2d 99, 102–104, 22 Cal.Rptr. 857, 372 P.2d 897 [citing specific penal statutes].) Prosecution under many of the penal statutes, covering both consensual and forcible sexual acts, often requires testimony of a far more intimate sexual nature than in the case before us. The victim of many of the proscribed acts suffers an invasion of privacy in both the act and the required testimony. And, the state has a fundamental right to enact laws which promote public health, welfare, and safety, even though such laws may invade the offender's right of privacy. (People v. Mills (1978) 81 Cal.App.3d 171, 181, 146 Cal.Rptr. 411 [compulsory registration of convicted sex offenders].)

        45

        Even sexual relations within marriage, long held sacrosanct, have recently been opened to scrutiny when a spouse complains of forcible sexual intercourse. (Pen.Code, § 262.) The ancient policy of protecting the privacy of the marriage bed is outweighed in the modern view by the grievous harm to a man or woman caused by spousal rape. (See Freeman, “But If You Can't Rape Your Wife, Who[m] Can You Rape?”: The Marital Rape Exemption Re-Examined (1981) 15 Family L.Q. 1.)In the civil law, for example, our Legislature has recently amended Evidence Code section 621 to state a limited exception to the rule that the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage. (See also Civ.Code, § 7004, subd. (a).) Either husband or wife, under certain circumstances, can bring an action to establish that the husband is not the biological father of his wife's child. (Evid.Code, § 621; cf. Michelle W. v. Ronald W. (1983) 139 Cal.App.3d 24, 188 Cal.Rptr. 413.) Here, traditional notions about the inviolability of certain aspects of human relationships have given way to recognition that former “protection” in reality worked hardship and injustice in many cases.Where paternity of a child is at issue, the mother cannot refuse to answer all relevant questions about her sexual activity on the plea that it is a private matter. Her right of privacy must yield to “ ‘the historically important state interest of facilitating the ascertainment of truth in ... legal proceedings.’ [Citation.]” ( Fults v. Superior Court (1979) 88 Cal.App.3d 899, 904, 152 Cal.Rptr. 210.) Nor can a man invoke the right of privacy to avoid a determination of paternity of a child he has fathered. (See Uniform Parentage Act (Civ.Code, §§ 7000–7021).)

        46

        Although the right to privacy is a freedom to be carefully guarded, it is evident that it does not insulate a person from all judicial inquiry into his or her sexual relations. We do not think it should insulate from liability one sexual partner who by intentionally tortious conduct causes physical injury to the other. (Cf. Marvin v. Marvin, supra, 18 Cal.3d 660, 682, fn. 21, 134 Cal.Rptr. 815, 557 P.2d 106.) Public policy does not demand such protection for the right of privacy.

        47
        VIII. Analogy to Venereal Disease Cases
        48

        Three out-of-state cases, without discussing public policy or the right to privacy, have held that a woman's consent to sexual intercourse was vitiated by the man's fraudulent concealment of the risk of infection with venereal disease or infestation with vermin. (See De Vall v. Strunk (Tex.Civ.App.1936) 96 S.W.2d 245 [single woman, seduced by promise of marriage, had action in battery against man who infected her with crab lice]; Crowell v. Crowell (1920) 180 N.C. 516 [105 S.E. 206] [wife was not under disability to maintain action for battery or fraud against husband for infecting her with venereal disease]; State v. Lankford (1917) 29 Del. 594 [102 A. 63] [man convicted of battery for fraudulently concealing venereal disease and infecting wife]; see Prosser, supra, § 18, p. 105.)

        49

        These old cases lend support to allowing the within action, in spite of the language in each case extolling the virtuous character of the woman involved.

        50

        We do not assess the wisdom nor predict the future course in the retreat from the double standard of morality for men and women in sexual matters. We do not think, however, at this stage of social mores, that it is relevant to judge appellant's action on the basis of morality.

        51
        IX. Violation of Fiduciary Obligation
        52

        Appellant and respondent differ markedly in their assessment of the impact of the attorney-client relationship in the case before us. Appellant contends that a fiduciary obligation extends to any type of conduct by which an attorney seeks to benefit at the client's expense. Respondent replies that no legal authority imposes on an attorney the burden of a fiduciary obligation with respect to his or her personal relations with a client. The parties have cited no case directly on point, and we can find none.

        53

        It is evident, however, that the lawyer-client relationship affects the proof of appellant's cause of action at trial, rather than the sufficiency of the pleadings. Because of the importance of the issue, we offer the following comments for the guidance of the trial court in further proceedings.

        54

        “[F]iduciary” and “confidential” have been used synonymously to describe “ ‘... any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party. Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he [or she] voluntarily accepts or assumes to accept the confidence, can take no advantage from his [or her] acts relating to the interest of the other party without the latter's knowledge or consent....’ ” (Herbert v. Lankershim (1937) 9 Cal.2d 409, 483, 71 P.2d 220; Bacon v. Soule (1912) 19 Cal.App. 428, 434, 126 P. 384.) Technically, a fiduciary relationship is a recognized legal relationship such as guardian and ward, trustee and beneficiary, principal and agent, or attorney and client (see Frankel, Fiduciary Law (1983) 71 Cal.L.Rev. 795), whereas a “confidential relationship” may be founded on a moral, social, domestic, or merely personal relationship as well as on a legal relationship. (See Stevens v. Marco (1956) 147 Cal.App.2d 357, 374, 305 P.2d 669; Bolander v. Thompson (1943) 57 Cal.App.2d 444, 447, 134 P.2d 924; Robbins v. Law (1920) 48 Cal.App. 555, 561, 192 P. 118.) The essence of a fiduciary or confidential relationship is that the parties do not deal on equal terms, because the person in whom trust and confidence is reposed and who accepts that trust and confidence is in a superior position to exert unique influence over the dependent party.

        55

        Our Supreme Court has stated that “[t]he relation between attorney and client is a fidicuary relation of the very highest character, and binds the attorney to most conscientious fidelity ....” (Cox v. Delmas (1893) 99 Cal. 104, 123, 33 P. 836; see also Rader v. Thrasher (1962) 57 Cal.2d 244, 250, 18 Cal.Rptr. 736, 368 P.2d 360; Sanguinetti v. Rossen (1906) 12 Cal.App. 623, 630, 107 P. 560; 1 Witkin, Cal.Procedure (2d ed. 1970) Attorneys, §§ 47–54, pp. 55–62.) Further, the court has admonished that “[a] member of the State Bar should not under any circumstances attempt to deceive another person, ...” (Cutler v. State Bar (1969) 71 Cal.2d 241, 252, 78 Cal.Rptr. 172, 455 P.2d 108; McKinney v. State Bar (1964) 62 Cal.2d 194, 196, 41 Cal.Rptr. 665, 397 P.2d 425; cf. Bus. & Prof.Code, § 6106.) Numerous cases have applied these basic principles where an attorney in breaching the fiduciary obligation has gained financial advantage. (See, e.g., Cutler v. State Bar, supra, 71 Cal.2d at p. 251, 78 Cal.Rptr. 172, 455 P.2d 108; Gold v. Greenwald (1966) 247 Cal.App.2d 296, 309–310, 55 Cal.Rptr. 660; Clark v. Millsap (1926) 197 Cal. 765, 783, 786, 242 P. 918.) We can find no valid reason to restrict these principles to actions involving financial claims of a client and not to apply them to actions in which the client alleges physical damage resulting from a violation of the attorney's fiduciary obligation.

        56

        Generally, the existence of a confidential relationship is a question of fact for the jury or the trial court. (Rieger v. Rich (1958) 163 Cal.App.2d 651, 664, 329 P.2d 770; Wilson v. Sampson (1949) 91 Cal.App.2d 453, 459, 205 P.2d 753; Estate of Llewellyn (1948) 83 Cal.App.2d 534, 562, 189 P.2d 822; Wilson v. Zorb (1936) 15 Cal.App.2d 526, 532, 55 P.2d 593; see 7 Witkin, Summary of Cal.Law (8th ed. 1974) Wills and Probate, § 112, p. 5626.) Where a legally recognized fiduciary relationship exists, however, the law infers a confidential relationship, i.e., it becomes a question of law for the court. (Rader v. Thrasher, supra, 57 Cal.2d 244, 250, 18 Cal.Rptr. 736, 368 P.2d 360; Sime v. Malouf (1949) 95 Cal.App.2d 82, 98, 212 P.2d 946.) If the fact finder determines that a confidential relationship exists or the court determines as a matter of law that a fiduciary relationship exists, it is presumed that the one in whom trust and confidence is reposed has exerted undue influence. (Rader v. Thrasher, supra, 57 Cal.2d 244, 250, 18 Cal.Rptr. 736, 368 P.2d 360; Roeder v. Roeder (1953) 118 Cal.App.2d 572, 580, 258 P.2d 581.) Because a presumption is no longer independent evidence, the effect of the presumption of undue influence is to shift the burden of proof to the fiduciary. (Evid.Code, § 600, subd. (a); 1 Witkin, Cal.Procedure, Attorneys, supra, § 51, p. 60.) The undue influence in the case before us is, of course, relevant on the issue of consent in appellant's cause of action for battery and on the issue of justifiable reliance in her cause of action for misrepresentation.

        57

        Nevertheless, the unique facts in the case before us compel a more cautious approach in imposing on respondent, as a matter of law, the highest fiduciary standard in all his relations with appellant, social as well as legal. The existence of a confidential relationship between appellant and respondent is more properly a question of fact for the jury, or court, who can better assess whether the legal relationship was dominant or whether the parties functioned on a more equal basis in their personal relations. Thus, appellant would have the burden of proving the existence of a confidential relationship. If such a relationship were established, respondent would then have the burden of proving that consent was informed and freely given in the battery cause of action, or, in the alternative, that her reliance was unjustified in the misrepresentation cause of action. To hold otherwise would have a chilling and far- reaching effect on any personal relations between an attorney and his or her clients. The possibility of a factual determination of a confidential relationship should be a sufficient warning to monitor the profession in personal or social relations with clients.

        58

        We decline to address another issue indirectly raised by appellant—one of first impression in California, at least as far as statutes, cases, and rules are concerned. She asserts that it is a breach of ethics for an attorney, particularly in a family law context, to induce a client to have sexual relations during the course of the representation, and she points out that other professions have imposed discipline on a member for sexual misconduct with a patient. (See, e.g., Dresser v. Board of Medical Quality Assurance (1982) 130 Cal.App.3d 506, 181 Cal.Rptr. 797; Cooper v. Board of Medical Examiners (1975) 49 Cal.App.3d 931, 123 Cal.Rptr. 563.)We think this question is more properly directed to the State Bar of California, which so far has not publicly addressed the issue. [11]

        59
        Conclusion
        60

        In summary, the facts alleged in appellant's cross-complaint state causes of action for battery and deceit. Her causes of action are not barred by Civil Code section 43.5, nor by the holding in Stephen K. v. Roni L., supra, 105 Cal.App.3d 640, 164 Cal.Rptr. 618, or the public policy considerations underlying that decision. Although the constitutional right to privacy normally shields sexual relations from judicial scrutiny, it does not do so where the right to privacy is used as a shield from liability at the expense of the other party. No California statute or decision bars appellant's causes of action, and decisions of other states support their viability by analogy.

        61
        Disposition
        62

        The judgment is reversed. The Municipal Court of the Napa-St. Helena Judicial District, County of Napa, State of California, is ordered to retransfer respondent's action to the Superior Court of the State of California, for the County of Napa, for further proceedings consistent with the views expressed herein.

        63

        FEINBERG, J., concurs.

        64

        SCOTT, Acting Presiding Justice.

        65

        I respectfully dissent. The cause of action appellant attempts to allege falls squarely within the prohibition of Civil Code section 43.5 which provides that “No cause of action arises for ... [¶] (c) Seduction of a person over the age of legal consent.” The Legislature in abolishing the seduction cause of action in 1939 labeled the anti-heart balm statute as “Wrongs not actionable.” Clearly the majority's assertion that “for every wrong there is a remedy” doesn't apply in the instant case.The majority attempts to characterize appellant's cause of action as a battery or an action for deceit. But in fact, appellant was allegedly seduced by respondent's false representation of infertility. The gravamen of appellant's cause of action is the seduction, that is the act of sexual intercourse induced by appellant's false representations. The injury sustained as a result of the alleged seduction was the ectopic pregnancy and damages that flowed therefrom. Clearly if there can be no cause of action for seduction, there can be no damages for the consequences thereof.

        66

        In rejecting respondent's contention that appellant's action is barred by Civil Code section 43.5, subdivision (c), the majority argues that this is not a seduction action because “appellant complains not because her virtue was violated ... but because the sexual act ... led to an ectopic pregnancy as a result of respondent's misrepresentation.” I find no support for the contention that the only damage from a seduction is loss of virtue. Surely a woman can suffer mentally and physically from an unwanted pregnancy whether it results in a live birth or is sooner terminated. All we are talking about is the damage that flows from the seduction.I agree with the court in Stephen K. v. Roni L. (1980) 105 Cal.App.3d 640 at pages 644 and 645, 164 Cal.Rptr. 618, where it states: “Despite [the] legalism [of plaintiff's claim], it is nothing more than asking the court to supervise the promises made between two consenting adults as to the circumstances of their private sexual conduct. To do so would encourage unwarranted governmental intrusion into matters affecting the individual's right of privacy.” Should we grant appellant here a cause of action, we cannot logically foreclose a cause of action to a woman who carries the child to a live birth, or one who has a miscarriage. The possibilities are limitless. The courts should stay out of the bedroom. I would affirm the judgment.

        67

        Hearing denied; RICHARDSON, J., dissenting.

        68

        Parallel Citations

        69

        145 Cal.App.3d 369

        70
        Footnotes
        71

        [1] In an ectopic pregnancy, the impregnated ovum develops outside the cavity of the uterus. (Stedman's Medical Dict. (3d unabridged lawyers' ed. 1972) p. 1013.) A tubal pregnancy, which occurred in the case before us, is an ectopic pregnancy where the fertilized ovum develops in the oviduct, also referred to as the Fallopian tube or tuba uterina. (Id., at pp. 903, 1014.) Respondent incorrectly refers to an ectopic pregnancy as a false pregnancy (pseudocyesis), a condition in which some of the signs and symptoms suggest pregnancy, although the woman is not in fact pregnant. (Id., at pp. 1013, 1033.)

        72

        [2] The court also granted respondent's motion to disqualify appellant's attorney.

        73

        [3] Civil Code section 43.5, enacted in 1939, provides: “No cause of action arises for:

        74

          “(a) Alienation of affection.

          “(b) Criminal conversation.

          “(c) Seduction of a person over the age of legal consent.

          “(d) Breach of promise of marriage.”

        75

        [4] In his answer, respondent denies not only the representations, but also the acts of intercourse. We, however, consider only the allegations in the cross-complaint.

        76

        Neither appellant nor respondent directed much attention to the sufficiency of the allegations in the first amended cross-complaint. Instead, each party emphasized public policy considerations and constitutional issues, which we discuss later.

        77

        [5] Appellant does not explain what happened to her second Fallopian tube, but this is a matter of proof at trial.

        78

        [6] Civil Code section 1710 provides: “A deceit, within the meaning of the last section, is either:

        79

          “1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

          “2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true;

          “3. The suppression of a fact, by one who is bound to disclose it or who gives information of other facts which are likely to mislead for want of communication of fact; or,

          “4. A promise, made without any intention of performing it.”

        80

        [7] The Legislature has retained in Penal Code section 268 criminal sanctions for “[e]very person who, under promise of marriage, seduces and has sexual intercourse with an unmarried female of previous chaste character....”

        81

        [8] The so-called “wrongful birth” cases were rejected by the Stephen K. court as precedent for Stephen's claim for two reasons: “First, in none of those cases did the plaintiffs seek so radical a change in the socially accepted ideas and views of sexual conduct, family relationship, parental obligations, and legal and moral responsibility for one's own conduct as does Stephen. Secondly, in those cases the facts and the relationship of the parties-litigants are different.” (Id., at p. 643, 164 Cal.Rptr. 618.) The actions have uniformly been instituted by parents against health professionals for negligence causing the birth of a child or the birth of an impaired child. For cases and discussion, see Turpin v. Sortini (1982) 31 Cal.3d 220, 225–228, 182 Cal.Rptr. 337, 643 P.2d 954; Stephen K. v. Roni L., supra, 105 Cal.App.3d 640, 643–644, 164 Cal.Rptr. 618.

        82

        [9] In response to Curlender v. Bio-Science Laboratories (1980) 106 Cal.App.3d 811, 165 Cal.Rptr. 477, which suggested “... possible parental liability [to the child] for deciding to conceive or failing to abort a potentially defective child, the Legislature enacted section 43.6 of the Civil Code, effective January 1, 1982. Section 43.6 relieves the parents of any liability in this situation ....” (Turpin v. Sortini, supra, 31 Cal.3d 220, 228, 182 Cal.Rptr. 337, 643 P.2d 954.) Although this section does not refer to intraparental tort actions based on misrepresentations, we think it is consistent with our conclusion that such actions are contrary to public policy.

        83

        [10] Both parties raise the issue of equal protection under the law. We do not view our holding as raising that issue. A man who suffers physical injury as a result of his female partner's intentional misrepresentation will have the same right to seek legal redress as does appellant in the case at bench.Furthermore, although the different treatment of men and women must be examined with strict scrutiny (Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 15–20, 95 Cal.Rptr. 329, 485 P.2d 529), such treatment may be justified where men and women are not similarly situated (Schlesinger v. Ballard (1975) 419 U.S. 498, 508, 95 S.Ct. 572, 577–78, 42 L.Ed.2d 610.) Since it is obvious that men and women are not similarly situated with regard to the risk of pregnancy, any difference in treatment of them which may be perceived in our holding is justified.

        84

        [11] The Board of Governors of the Oregon State Bar in June 1982 issued Legal Ethics Opinion No. 475, advisory only, stating that it is unethical for an attorney to be sexually involved with the client while representing the client in a divorce action, which of course may differ in degree from a post-dissolution modification proceeding. The discussion accompanying the opinion is as follows: “DR 5–101(A) requires that a lawyer not accept employment if the exercise of his or her professional judgment on behalf of the client may be affected by his or her own personal interest, except with the consent of the client after full disclosure. DR 5–101(A) and 2–110(B)(2) and (C)(2) also imply a duty to withdraw from employment if circumstances arise whereby the attorney's personal interests may impair his or her ability to continue to exercise independent professional judgment on behalf of the client, unless the client consents to continued representation after full disclosure.

        85

          “These rules recognize that to fulfill the lawyer's responsibility of fully and adequately representing the client, it is essential that the lawyer be able to exercise independent professional judgment on behalf of the client. Where there is any question about the lawyer's ability to exercise an independent professional judgment, the client must be able to give an informed consent.

          “The lawyer representing one spouse in a dissolution proceeding cannot know with certainty whether a reconciliation is possible or is in the best interest of the client, or how the possibility of a reconciliation might be affected by an affair between the lawyer and the client. Nor can the lawyer know with certainty what reaction the client's spouse would have to learning that the lawyer is having an affair during the dissolution proceedings, or how such knowledge might affect the negotiation of property rights and, if children are involved, the right to custody. See In the Matter of Lehr and Lehr, 36 Or.App. 23, 583 P.2d 1157 (1978). The potential for prejudice to the client is immense.

          “Moreover, the client may be unable to give a voluntary and informed consent to continued representation. The attorney-client relationship is a fiduciary relationship, one of trust. The nature of that fiduciary relationship tends to make the client intellectually and, in many cases, emotionally dependent upon the attorney. If the client becomes involved in a love affair with the attorney, that dependency would only be increased. It would appear impossible for the lawyer to carry on such an affair with the client and maintain an independent judgment about whether the affair might harm the client's interests. See DR 7–101(A)(3). Even if the attorney were able to predict the consequences of the affair and explain them to the client, it is doubtful that the client's consent to the attorney's continued representation could ever be deemed truly informed and voluntary....”

  • 3 II. Assault and Battery: Intent and Autonomy

    In the absence of statutes that clearly delineate acceptable from unacceptable behavior – that’s the realm of criminal law, and still plenty complicated – tort law often requires a court to draw boundaries on the fly as individual cases come up. Here we look at a cluster of problems arising generally from situations in which society might say the wrongness of an act may be minimal or entirely lacking – yet a victim steps forward to earnestly claim that his or her wishes about bodily integrity have been disrespected.

    The rough and tumble of daily life – “the implied license of the playground” – allows some license for those who offend with physical contact, including against the especially sensitive. When does that license end, particularly if a plaintiff’s special sensitivities are known to a defendant? Are there any larger principles at work to help us resolve conflicts in this zone, or that at least capture the instincts that might find themselves in opposition?

    • 3.1 II.A. Latent Sensitivities and Reservations

      • 3.1.1 Wishnatsky v. Huey--"The Overly Sensitive Intruder"

        • 3.1.1.1 Wishnatsky v. Huey-- “The Overly-Sensitive Intruder”

          Should findings of offensive-contact-battery be based on a plaintiff’s level of sensitivity, or a more general standard?

          1
          Wishnatsky v. Huey
          2
          1998 ND App 8
          3
          North Dakota Court of Appeals
          4
          September 15, 1998
          5

          Civil No. 980067CA. Martin Wishnatsky, Plaintiff and Appellant v. David W. Huey, Defendant and Appellee. Appeal from the District Court for Cass County, East Central Judicial District, the Honorable Georgia Dawson, Judge. Per Curiam. Martin Wishnatsky, P.O. Box 413, Fargo, ND 58107, pro se; Andrew Moraghan, Assistant Attorney General, Attorney General’s Office, 900 East Boulevard Avenue, Bismarck, ND 58505-0041, for defendant and appellee.

          6

          PER CURIAM.[¶1] Martin Wishnatsky appealed a summary judgment dismissing his battery action against David W. Huey, and an order denying his motion for an altered judgment. We conclude, as a matter of law, that no battery occurred, and we affirm the judgment and the order.

          7

          [¶2] On January 10, 1996, Huey, an assistant attorney general, was engaged in a conversation with attorney Peter B. Crary in Crary’s office. Without knocking or announcing his entry, Wishnatsky, who performs paralegal work for Crary, attempted to enter the office. Huey pushed the door closed, thereby pushing Wishnatsky back into the hall. Wishnatsky reentered the office and Huey left.

          8

          [¶3] Wishnatsky brought an action against Huey, seeking damages for battery. Huey moved for summary judgment of dismissal. The trial court granted Huey’s motion and a judgment of dismissal was entered. Wishnatsky moved to alter the judgment. The trial court denied Wishnatsky’s motion.

          9

          [¶4] Wishnatsky appealed, contending the evidence he submitted in response to Huey’s motion for summary judgment satisfies the elements of a battery claim and the trial court erred in granting Huey’s motion. Wishnatsky also contends Huey is not entitled to prosecutorial or statutory immunity.

          10

          [¶5] Summary judgment is a procedural device for the prompt and expeditious disposition of a controversy without trial if either party is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving factual disputes would not alter the result. Perry Center, Inc. v. Heitkamp, 1998 ND 78, ¶ 12, 576 N.W.2d 505. “In considering a motion for summary judgment, a court must view the evidence in the light most favorable to the party opposing the motion, who must be given the benefit of all favorable inferences which reasonably can be drawn from the evidence.” Mougey Farms v. Kaspari, 1998 ND 118, ¶ 12, 579 N.W.2d 583. “Disputes of fact become questions of law if reasonable persons can draw only one conclusion from the evidence.” Id. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the non-moving party to determine if the trial court properly granted summary judgment as a matter of law. Tuhy v. Schlabsz, 1998 ND 31, ¶ 5, 574 N.W.2d 823. On a defendant’s motion for summary judgment, the question for the court is “whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

          11

          [¶6] “In its original conception [battery] meant the inflicton of physical injury.” VIII Sir William Holdsworth, A History of English Law 422 (2d Impression 1973). By the Eighteenth Century, the requirement of an actual physical injury had been eliminated:

          12
            At Nisi Prius, upon evidence in trespass for assault and battery, Holt, C. J. declared, 1. That the least touching of another in anger is a battery. 2. If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it is no battery. 3. If any of them use violence against the other, to force his way in a rude inordinate manner, it is a battery; or any struggle about the passage, to that degree as may do hurt, is a battery. Vid.Bro.Tresp. 236. 7 E. 4, 26. 22 Ass. 60. 3 H. 4, 9.
          14
            The least touching of another’s person willfully, or in anger, is a battery; for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it: every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner. 3 William Blackstone, Commentaries *120. On the other hand, “in a crowded world, a certain amount of personal contact is inevitable, and must be accepted.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 9, at 42 (5th ed. 1984).
          15

          [¶7] The American Law Institute has balanced the interest in unwanted contacts and the inevitable contacts in a crowded world in Restatement (Second) of Torts §§ 18, 19(1965):

          16
            18. Battery: Offensive Contact

            (1) An actor is subject to liability to another for battery if

            (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and

            (b) an offensive contact with the person of the other directly or indirectly results.

            (2) An act which is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

            19. What Constitutes Offensive Contact
            A bodily contact is offensive if it offends a reasonable sense of personal dignity.

          18
            In order that a contact be offensive to a reasonable sense of personal dignity, it must be one which would offend the ordinary person and as such one not unduly sensitive as to his personal dignity. It must, therefore, be a contact which is unwarranted by the social usages prevalent at the time and place at which it is inflicted.
          19

          [¶8] Huey moved for summary judgment of dismissal, because, among other things, “as a matter of law, a battery did not occur on January 10, 1996.” Huey supported the motion with his affidavit stating in part:

          20
            8. That Attorney Crary and I had settled into a serious discussion about the case and had established a good rapport when the door to his office suddenly swung open without a knock. An unidentified individual carrying some papers then strode in unannounced. I had not been told that anyone would be entering Attorney Crary’s office during the private meeting. . . . I subsequently learned that the individual’s name is Martin Wishnatsky.
          22

          [¶9] Wishnatsky responded to Huey’s motion for summary judgment with an affidavit of Crary and with his own affidavit stating in part:

          23
            1. I am a born-again Christian and cultivate holiness in my life. [A]s a result I am very sensitive to evil spirits and am greatly disturbed by the demonic. However, in Christ there is victory.

            2. On January 9, 1996, Mr. David Huey of the North Dakota Attorney General’s office, visited the ministry where I was working at 16 Broadway in Fargo, North Dakota with an ex parte court order.

            3. The following morning I entered the office of Peter Crary, an attorney for whom I do paralegal work, to give him certain papers that had been requested. Mr. Crary was speaking with Mr. David Huey at the time. As I began to enter the office Mr Huey threw his body weight against the door and forced me out into the hall. I had not said a word to him. At the same time, he snarled: “You get out of here.” This was very shocking and frightening to me. In all the time I have been working as an aide to Mr. Crary, I have never been physically assaulted or spoken to in a harsh and brutal manner. My blood pressure began to rise, my heart beat accelerated and I felt waves of fear in the pit of my stomach. My hands began to shake and my body to tremble. Composing myself, I reentered the office, whereupon Mr. Huey began a half-demented tirade against me and stormed out into the hall. I looked at Mr. Crary in wonder.
          24

          [¶10] We certainly agree with the Supreme Cout’s determination that when Wishnatsky attempted to enter the room in which Huey was conversing with Crary, “Huey apparently reacted in a rude and abrupt manner in attempting to exclude Wishnatsky from that conversation.” Wishnatsky v. Huey, 1997 ND 35, ¶ 15, 560 N.W.2d 878. As a matter of law, however, Huey’s “rude and abrupt” conduct did not rise to thelevel of battery.

          25

          [¶11] The evidence presented to the trial court demonstrates Wishnatsky is “unduly sensitive as to his personal dignity.” Restatement (Second) of Torts § 19 cmt. a (1965). Without knocking or otherwise announcing his intentions, Wishnatsky opened the door to the office in which Huey and Crary were having a private conversation and attempted to enter. Huey closed the door opened by Wishnatsky, thereby stopping Wishnatsky’s forward progress and pushing him back into the hall. The bodily contact was momentary, indirect, and incidental. Viewing the evidence in the light most favorable to Wishnatsky, and giving him the benefit of all favorable inferences which can reasonably be drawn from the evidence, we conclude Huey’s conduct in response to Wishnatsky’s intrusion into his private conversation with Crary, while “rude and abrupt,” would not “be offensive to a reasonable sense of personal dignity.” In short, an “ordinary person . . . not unduly sensitive as to his personal dignity” intruding upon a private conversation in Wishnatsky’s manner would not have been offended by Huey’s response to the intrusion. We conclude that Huey’s conduct did not constitute an offensive-contact-battery, as a matter of law, and the trial court did not err in granting Huey’s motion for summary judgment dismissing Wishnatsky’s action.

          26

          [¶12] Because we have concluded there was no battery as a matter of law, we need not address the immunity issues Wishnatsky has raised. We need not consider questions, the answers to which are unnecessary to the determination of the case. See, e.g., Kaler v. Kraemer, 1998 ND 56, ¶ 10, 574 N.W.2d 588; Hospital Servs., Inc. v. Brooks, 229 N.W.2d 69, 71 (N.D. 1975).

          27

          [¶13] Affirmed.

        • 3.1.1.2 Wishnatsky's (Plaintiff's) Amended Complaint

          1
          STATE OF NORTH DAKOTA COUNTY OF CASS


          Martin Wishnatsky,
          Plaintiff,
          vs.
          David W. Huey,
          Defendant.


          IN DISTRICT COURT EAST CENTRAL JUDICIAL DISTRICT


          Civil No.

          2
          AMENDED COMPLAINT

          5

          Plaintiff for his complaint, states and alleges as follows:

          6
          Parties

          8

          1. He is a resident of Cass County, North Dakota.
          2. Defendant David W. Huey is an assistant attorney general for the state of North Dakota and a resident of Bismarck. Defendant is being sued in both his individual and official capacities.Jurisdiction
          3. This action arises under the common law of torts.



          11
          Events

          13

          4. Plaintiff has his office on the third floor of 16 Broadway in Fargo and provides paralegal services to attorney Peter Crary whose office is on the same floor. It is very common and a matter of routine for the plaintiff to be in and out of Mr. Crary's office during the day.
          5. On Wednesday morning, January 10th, 1996, at approximately 10:00 a.m. during normal business hours the plaintiff entered Mr. Crary's office to give him certain papers that had been requested. Mr. Crary was speaking with defendant David Huey at the time. As the plaintiff began to enter the office, Mr. Huey snarled: "You get out of here." Simultaneously the defendant threw his body weight against the door to prevent the plaintiff from entering Mr. Crary's office. The pressure of the door being forced against his body by Mr. Huey overcame plaintiff’s forward movement and he was physically forced backwards and out into the hall.
          6. The plaintiff had not said a word to Mr. Huey to provoke this attack. He had done nothing more than to open the door and to begin to walk into Mr. Crary's office, something he routinely did many times every work day.
          7. The plaintiff was shocked and frightened by Mr. Huey's physical attack upon him. In all the time he had been providing paralegal services to Mr. Crary, he had never been physically assaulted or spoken to in a harsh and brutal manner. Plaintiff’s blood pressure began to rise. His heartbeat accelerated and he experienced waves of fear in the pit of his stomach. Plaintiff’s hands also began to shake and his body trembled.
          8. Composing himself, the plaintiff reentered Mr. Crary's office to deliver the papers to him and made a brief and respectful statement to Mr. Huey that as a public servant he had an obligation to treat the public with respect and courtesy. Mr. Huey then went into a tirade, stating that he would no longer discuss anything with Mr. Crary, that his time was too valuable, etc. He then stormed out into the hall. The plaintiff then gave Mr. Crary the papers he had originally entered his office to provide and left.
          9. After this experience it took the plaintiff a considerable amount of time to settle down and get into his work routine. He was emotionally upset and frightened by the abusive behavior of the state's representative.



          16
          Cause of Action for Battery

          18

          10. By the actions described in paragraphs 5-8, the defendant intentionally and in anger engaged in violent, offensive, insulting, uninvited and unwanted physical contact with the plaintiff.
          11. This unpermitted contact, as described above, was reasonably offensive to the plaintiffs sense of personal dignity, was unwarranted by the social usages prevalent in an office environment and in the legal community, and was contrary to all good manners.
          12. This offensive contact constituted a battery upon the person of the plaintiff.
          13. Defendant's actions constitute malfeasance in that the battery was a wholly wrongful and unlawful act.



          21
          Damages

          23

          14. Plaintiff is entitled to nominal damages for the battery itself and compensatory damages for the emotional upset, fear and distress caused by the defendants' actions.
          15. Plaintiff requests a trial by jury and such other and further relief as the court may deem suitable.



          27
          Dated this 2nd day of August, 1996.

          Martin Wishnatsky
        • 3.1.1.3 Letters Between Litigants

          1

          Mr. Andrew Moraghan
          Assistant Attorney General
          900 East Boulevard
          Bismarck ND 58505



          4

          RE: Wishnatsky v. Huey
          Civil No. 96-2297



          7

          Dear Mr. Moraghan:

          Enclosed is a draft motion to compel in the above matter. In the interest of allowing the defendant to reconsider his discovery responses, the motion is being sent to you for consideration.

          I will allow you a week or two to consider the motion before filing it. If you need more time or decide voluntarily to supplement the responses served on January 29, 1997, please let me know.

          Sincerely,
          Martin Wishnatsky





          13

          OFFICE OF ATTORNEY GENERAL

          STATE OF NORTH DAKOTA
          May 23, 1997
          15

          Mr. Martin Wishnatsky
          P.O. Box 413 Fargo, ND 58107

          16

          RE: Wishnatsky v. Huey Civil
          No. 96-2297

          17

          Dear Mr. Wishnatsky:

          Thank you for your letter dated May 13, 1997.

          We believe that there were valid grounds for the objections that we interposed to your interrogatories. Therefore, we will not be amending our answers.

          We do not believe that your proposed motion to compel discovery would be substantially justified. Furthermore, we believe that the interrogatories to which we objected were designed to harass the defendant. Therefore, if you elect to file your motion, it is likely that we will seek reasonable expenses, including attorney's fees, incurred in opposing the motion.

          Please feel free to contact me if you have any questions. Thank you.

          Sincerely,

          Andrew Moraghan

          18

          Assistant Attorney
          General Office of Attorney General
          900 East Boulevard Avenue
          Bismarck, ND 58505-0041
          Telephone (701) 328-3640
          Facsimile (701) 328-4300

          19

          jjt
          cc: Dave Huey

        • 3.1.1.4 Wishnatsky's (Plaintiff's) Affidavits

          1

          COUNTY OF CASS

          EAST CENTRAL JUDICIAL DISTRICT


          AFFIDAVIT OF MARTIN WISHNATSKY


          Civil No. 96-2297

          Martin Wishnatsky,
          Plaintiff,

          vs.

          David W. Huey,
          Defendant.






















          33
          COUNTY OF CASS

          EAST CENTRAL JUDICIAL DISTRICT

          AFFIDAVIT OF MARTIN WISHNATSKY


          Civil No. 96-2297

          Martin Wishnatsky,
          Plaintiff,

          vs.

          David W. Huey,
          Defendant.








        • 3.1.1.5 Crary's Affidavit

          1
          STATE OF NORTH DAKOTA COUNTY OF CASS IN DISTRICT COURT EAST CENTRAL JUDICIAL DISTRICT
          Martin Wishnatsky, Civil No. 96-2297 Plaintiff, vs. AFFIDAVIT OF PETER B. CRARY David W. Huey, Defendant.
          3

          Peter B. Crary, being duly sworn, deposes and says:

          4

          1. I am a member of the North Dakota Bar Association. My law office is at 1201 12th Avenue North in Fargo. My legal assistant is Martin Wishnatsky.

          5

          2. In January of 1996, my offices were on the third floor of the old Herbst Building at 16 Broadway in downtown Fargo. Mr. Wishnatsky occupied an office across the hall from me. The offices had full-length glass-paneled windows and doors.

          6

          3. On the morning of Wednesday, January 10, 1996 I was having a conversation in my office with North Dakota Assistant Attorney General David Huey, when Mr. Wishnatsky opened the door and walked in. Martin was carrying certain papers which were pertinent to my discussion with Mr. Huey and was entering the room to deliver them to me as part of his duties as my legal assistant. It is quite common for Martin to be in and out of my office during the day. There was nothing unusual in his entering my office at this time.

          7

          4. Mr. Huey had been conducting himself in an orderly manner during our conversation. However, when Mr. Wishnatsky began to enter my office, he seemed to undergo a personality change and went into an emotional "spike." He snarled at Mr. Wishnatsky to get out of the room and then, as it appeared to me, physically forced Martin out into the hall by thrusting his body weight against the door. I believe he also made physical contact with Martin's body as well as the door. I was quite startled at this behavior because (1) it seemed to be a sudden personality change on Mr. Huey's part and (2) it seemed as if, prior to this change in behavior, we were having what I would characterize as an amicable exchange in my office.

          8

          Frankly, I simply had no prior experience of a visitor to my office at 16 Broadway or in any other location becoming physically aggressive and hostile until I witnessed this behavior by Mr. Huey. Mr. Huey's actions were completely unprovoked by Mr. Wishnatsky who had not previously said a word to him.

          9

          5. Mr. Wishnatsky reentered my office to deliver the papers to me and made a brief and respectful statement to Mr. Huey that as a public servant he had an obligation to treat the public with respect and courtesy. Mr. Huey then went into an irrational tirade, stating that he would no longer discuss anything with me, that his time was too valuable, etc., and stormed out into the hall. Mr. Wishnatsky called after him, "David," attempting, it seemed to me, to calm him down. Mr. Wishnatsky gave me the papers he had originally entered my office to provide. He then left. Mr. Huey re-entered the office and we resumed our conversation.

          10

          6. Certainly Mr. Huey's "spike" was unusual and not in keeping with the geniality that is becoming a businessman/lawyer/public servant. Furthermore, over my years of serving the public, I have never witnessed such an abrupt ("spike") change of personality!

          11

          7. Obviously I regard this as a very serious matter and certainly remain available should I be called upon further to elaborate on this event.

          12

          8. Attached to this affidavit as Exhibit A are enlargements of photos taken subsequent to the events described above which depict a re-enactment of Mr. Wishnatsky entering my office at 16 Broadway. The photos show the glass paneled-door and windows. The chair Mr. Huey was sitting in is depicted in the location it occupied at the time of the incident.

          13

          9. Any visitor to my office was visible through the glass in the door before entering. My desk was positioned facing the door.

          15

          Peter B. Crary:

      • 3.1.2 O'Brien v. Cunard--"The Silent Vaccine Objector"

        Should we expect actors to respect the inner wishes of others, even when those desires contradict—or at least fail to be reflected in—external behavior?

        1

        28 N.E. 266

        Supreme Judicial Court of Massachusetts, Suffolk.

        O'BRIEN

        v.

        CUNARD S.S. CO., Limited.

        Sept. 1, 1891.

        2

        Exceptions from superior court, Suffolk county.

        3

        Action of tort by Mary E. O'Brien against Cunard Steam-Ship Company, Limited. Judgment for defendant. Plaintiff brings exceptions. Exceptions overruled.

        4

        E.N. Hill and Frederic Cunningham, for plaintiff.

        5

        Geo. Putnam and Thos. Russell, for defendant.

        6

        KNOWLTON, J.

        7

        This case presents two questions: First, whether there was any evidence to warrant the jury in finding that the defendant, by any of its servants or agents, committed an assault on the plaintiff; secondly, whether there was evidence on which the jury could have found that the defendant was guilty of negligence towards the plaintiff. To sustain the first count, which was for an alleged assault, the plaintiff relied on the fact that the surgeon who was employed by the defendant vaccinated her on ship-board, while she was on her passage from Queenstown to Boston. On this branch of the case the question is whether there was any evidence that the surgeon used force upon the plaintiff against her will. In determining whether the act was lawful or unlawful, the surgeon's conduct must be considered in connection with the surrounding circumstances. If the plaintiff's behavior was such as to indicate consent on her part, he was justified in his act, whatever her unexpressed feelings may have been. In determining whether she consented, he could be guided only by her overt acts and the manifestations of her feelings. Ford v. Ford, 143 Mass. 578, 10 N.E.Rep. 474; McCarthy v. Railroad Corp., 148 Mass. 550, 552, 20 N.E.Rep. 182. It is undisputed that at Boston there are strict quarantine regulations in regard to the examination of emigrants, to see that they are protected from small-pox by vaccination, and that only those persons who hold a certificate from the medical officer of the steam-ship, stating that they are so protected, are permitted to land without detention in quarantine, or vaccination by the port physician. It appears that the defendant is accustomed to have its surgeons vaccinate all emigrants who desire it, and who are not protected by previous vaccination, and give them a certificate which is accepted at quarantine as evidence of their protection. Notices of the regulations at quarantine, and of the willingness of the ship's medical officer to vaccinate such as needed vaccination, were posted about the ship in various languages, and on the day when the operation was performed the surgeon had a right to presume that she and the other women who were vaccinated understood the importance and purpose of vaccination for those who bore no marks to show that they were protected. By the plaintiff's testimony, which, in this particular, is undisputed, it appears that about 200 women passengers were assembled below, and she understood from conversation with them that they were to be vaccinated; that she stood about 15 feet from the surgeon, and saw them form in a line, and pass in turn before him; that he “examined their arms, and, passing some of them by, proceeded to vaccinate those that had no mark;” that she did not hear him say anything to any of them; that upon being passed by they each received a card, and went on deck; that when her turn came she showed him her arm; he looked at it, and said there was no mark, and that she should be vaccinated; that she told him she had been vaccinated before, and it left no mark; “that he then said nothing; that he should vaccinate her again;” that she held up her arm to be vaccinated; that no one touched her; that she did not tell him she did not want to be vaccinated; and that she took the ticket which he gave her, certifying that he had vaccinated her, and used it at quarantine. She was one of a large number of women who were vaccinated on that occasion, without, so far as appears, a word of objection from any of them. They all indicated by their conduct that they desired to avail themselves of the provisions made for their benefit. There was nothing in the conduct of the plaintiff to indicate to the surgeon that she did not wish to obtain a card which would save her from detention at quarantine, and to be vaccinated, if necessary, for that purpose. Viewing his conduct in the light of the surrounding circumstances, it was lawful; and there was no evidence tending to show that it was not. The ruling of the court on this part of the case was correct. The plaintiff contends that, if it was lawful for the surgeon to vaccinate her, the vaccination was negligently performed. “There was no evidence of want of care or precaution by the defendant in the selection of the surgeon, or in the procuring of the virus or vaccine matter.” Unless there was evidence that the surgeon was negligent in performing the operation, and unless the defendant is liable for this negligence, the plaintiff must fail on the second count.

        8

        Whether there was any evidence of negligence of the surgeon we need not inquire, for we are of opinion that the defendant is not liable for his want of care in performing surgical operations. The only ground on which it is argued that the defendant is liable for his negligence is that he is a servant engaged in the defendant's business, and subject to its control. We think this argument is founded on a mistaken construction of the duty imposed on the defendant by law. By the fifth section of the act of congress of August 2, 1882, (22 U.S.St. at Large, 188,) it is provided that “every steam-ship or other vessel carrying or bringing emigrant passengers, or passengers other than cabin passengers, exceeding fifty in number, shall carry a duly competent and qualified surgeon or medical practitioner, who shall be rated as such in the ship's articles, and who shall be provided with surgical instruments, medical comforts, and medicines proper and necessary for diseases and accidents incident to sea voyages, and for the proper medical treatment of such passengers during the voyage, and with such articles of food and nourishment as may be proper and necessary for preserving the health of infants and young children; and the services of such surgeon or medical practitioner shall be promptly given in any case of sickness or disease to any of the passengers or to any infant or young child of any such passengers, who may need his services. For a violation of either of the provisions of this section the master of the vessel shall be liable to a penalty not exceeding two hundred and fifty dollars.” Under this statute it is the duty of the ship-owners to provide a competent surgeon, whom the passengers may employ, if they choose, in the business of healing their wounds, and curing their diseases. The law does not put the business of treating sick passengers into the charge of common carriers, and make them responsible for the proper management of it. The work which the physician or surgeon does in such cases is under the control of the passengers themselves. It is their business, not the business of the carrier. They may employ the ship's surgeon, or some other physician or surgeon who happens to be on board, or they may treat themselves if they are sick, or may go without treatment if they prefer; and, if they employ the surgeon, they may determine how far they will submit themselves to his directions, and what of his medicines they will take and what reject, and whether they will submit to a surgical operation or take the risk of going without it. The master or owners of the ship cannot interfere in the treatment of the medical officer when he attends a passenger. He is not their servant, engaged in their business, and subject to their control as to his mode of treatment. They do their whole duty if they employ a duly qualified and competent surgeon and medical practitioner, and supply him with all necessary and proper instruments, medicines, and medical comforts, and have him in readiness for such passengers as choose to employ him. This is the whole requirement of the statute of the United States applicable to such cases; and if, by the nature of their undertaking to transport passengers by sea, they are under a liability at the common law to make provision for their passengers in this respect, that liability is no greater. It is quite reasonable that the owners of a steam-ship used in the transportation of passengers should be required by law to provide a competent person to whom sick passengers can apply for medical treatment, and when they have supplied such a person it would be unreasonable to hold them responsible for all the particulars of his treatment when he is engaged in the business of other persons, in regard to which they are powerless to interfere. The reasons on which it is held in the courts of the United States and of Massachusetts that the owners are liable for the negligence of a pilot in navigating the ship, even though he is appointed by public agencies, and the master has no voice in the selection of him, do not apply to this case. The China, 7 Wall. 53-67; Yates v. Brown, 8 Pick. 23. The pilot is engaged in the navigation of the ship, for which, on grounds of public policy, the owners should be held responsible. The business is theirs, and they have certain rights of control in regard to it. They may determine when and how it shall be undertaken, and the master may displace the pilot for certain causes. But in England it has been held that even in such case the owners are not liable. Carruthers v. Sydebotham, 4 Maule & S. 88; The Protector, 1 W.Rob. 45; The Maria, Id. 95. The view which we have taken of this branch of the case is fully sustained by a unanimous judgment of the court of appeals of New York in Laubheim v. De Koninglyke N.S. Co., 107 N.Y. 228, 13 N.E.Rep. 781. See, also, Secord v. Railway Co., 18 Fed.Rep. 221; McDonald v. Hospital, 120 Mass. 432. We are of opinion that on both parts of the case the rulings at the trial were correct. The evidence excepted to was rightly admitted. Exceptions overruled.

    • 3.2 II.B. The Spectrum Between Subjective and Objective

      • 3.2.1 Leichtman v. WLW Jacor Communications, Inc. -- "The Smoke in the Face Case"

        Should a smoker's license to freely blow his smoke be limited by the sensitivity of non-smokers?

        2

        Page 232

        5
        92 Ohio App.3d 232

        8
        634 N.E.2d 697, 46 A.L.R.5th 939

        11
        LEICHTMAN, Appellant,
        v.
        WLW JACOR COMMUNICATIONS, INC. et al., Appellees.

        14
        No. C-920922.

        17
        Court of Appeals of Ohio, First District, Hamilton County.

        20
        Decided Jan. 26, 1994.
        22

                [634 N.E.2d 698]

        24

        Page 233

        26

                Strauss & Troy and William K. Flynn, Cincinnati, for appellees WLW Jacor Communications, Inc. and William Cunningham.

        28

                Waite, Schneider, Bayless & Chesley, Stanley M. Chesley and Paul M. DeMarco, Cincinnati, for appellee Andy Furman.

        30

        Page 234

        32

                PER CURIAM.

        34

                The plaintiff-appellant, Ahron Leichtman, appeals from the trial court's order dismissing his complaint against the defendants-appellees, WLW Jacor Communications ("WLW"), William Cunningham and Andy Furman, for battery, invasion of privacy, and a violation of Cincinnati Bd. of Health Reg. No. 00083. In his single assignment of error, Leichtman contends that his complaint was sufficient to state a claim upon which relief could be granted and, therefore, the trial court was in error when it granted the defendants' Civ.R. 12(B)(6) motion. We agree in part.

        36

                In his complaint, Leichtman claims to be "a nationally known" antismoking advocate. Leichtman alleges that, on the date of the Great American Smokeout, he was invited to appear on the WLW Bill Cunningham radio talk show to discuss the harmful effects of smoking and breathing secondary smoke. He also alleges that, while he was in the studio, Furman, another WLW talk-show host, lit a cigar and repeatedly blew smoke in Leichtman's face "for the purpose of causing physical discomfort, humiliation and distress."

        38

                Under the rules of notice pleading, Civ.R. 8(A)(1) requires only "a short and plain statement of the claim showing that the pleader is entitled to relief." When construing a complaint for failure to state a claim, under Civ.R. 12(B)(6), the court assumes that the factual allegations on the face of the complaint are true. O'Brien v. Univ. Community Tenants Union, Inc. (1975), 42 Ohio St.2d 242, 71 O.O.2d 223, 327 N.E.2d 753, syllabus. For the court to grant a motion to dismiss, "it must appear beyond doubt from the complaint that the plaintiff can prove no set of facts entitling him to recovery." Id. A court cannot dismiss a complaint under Civ.R. 12(B)(6) merely because it doubts the plaintiff will prevail. Slife v. Kundtz Properties, Inc. (1974), 40 Ohio App.2d 179, 69 O.O.2d 178, 318 N.E.2d 557. Because it is so easy for the pleader to satisfy the standard of Civ.R. 8(A), few complaints are subject to dismissal. Id. at 182, 69 O.O.2d at 180, 318 N.E.2d at 560.

        40

                Leichtman contends that Furman's intentional act constituted a battery. The Restatement of the Law 2d, Torts (1965), states:

        42

                "An actor is subject to liability to another for battery if

        44

                "(a) he acts intending to cause a harmful or offensive contact with the person of the other * * *, and

        46

                "(b) a harmful contact with the person of the other directly or indirectly results[; or] 1

        48

        Page 235

        50

                "[c] an offensive contact with the person of the other directly or indirectly results." 2 (Footnote added.)

        52

                [634 N.E.2d 699] In determining if a person is liable for a battery, the Supreme Court has adopted the rule that "[c]ontact which is offensive to a reasonable sense of personal dignity is offensive contact." Love v. Port Clinton (1988), 37 Ohio St.3d 98, 99, 524 N.E.2d 166, 167. It has defined "offensive" to mean "disagreeable or nauseating or painful because of outrage to taste and sensibilities or affronting insultingness." State v. Phipps (1979), 58 Ohio St.2d 271, 274, 12 O.O.3d 273, 275, 389 N.E.2d 1128, 1131. Furthermore, tobacco smoke, as "particulate matter," has the physical properties capable of making contact. R.C. 3704.01(B) and 5709.20(A); Ohio Adm.Code 3745-17.

        54

                As alleged in Leichtman's complaint, when Furman intentionally blew cigar smoke in Leichtman's face, under Ohio common law, he committed a battery. No matter how trivial the incident, a battery is actionable, even if damages are only one dollar. Lacey v. Laird (1956), 166 Ohio St. 12, 1 O.O.2d 158, 139 N.E.2d 25, paragraph two of the syllabus. The rationale is explained by Roscoe Pound in his essay "Liability": "[I]n civilized society men must be able to assume that others will do them no intentional injury--that others will commit no intentioned aggressions upon them." Pound, An Introduction to the Philosophy of Law (1922) 169.

        56

                Other jurisdictions also have concluded that a person can commit a battery by intentionally directing tobacco smoke at another. Richardson v. Hennly (1993), 209 Ga.App. 868, 871, 434 S.E.2d 772, 774-775. We do not, however, adopt or lend credence to the theory of a "smoker's battery," which imposes liability if there is substantial certainty that exhaled smoke will predictably contact a nonsmoker. Ezra, Smoker Battery: An Antidote to Second-Hand Smoke (1990), 63 S.Cal.L.Rev. 1061, 1090. Also, whether the "substantial certainty" prong of

        58

        Page 236

        60

                Neither Cunningham nor WLW is entitled to judgment on the battery claim under Civ.R. 12(B)(6). Concerning Cunningham, at common law, one who is present and encourages or incites commission of a battery by words can be equally liable as a principal. Bell v. Miller (1831), 5 Ohio 250; 6 Ohio Jurisprudence 3d (1978) 121-122, Assault, Section 20. Leichtman's complaint states, "At Defendant Cunningham's urging, Defendant Furman repeatedly blew cigar smoke in Plaintiff's face."

        62

                With regard to WLW, an employer is not legally responsible for the intentional torts of its employees that do not facilitate or promote its business. Osborne v. Lyles (1992), 63 Ohio St.3d 326, 329-330, 587 N.E.2d 825, 828-829. However, whether an employer is liable under the doctrine of respondeat superior because its employee is acting within the scope of employment is ordinarily a question of fact. Id. at 330, 587 N.E.2d at 825. Accordingly, Leichtman's claim for battery with the allegations against the three defendants in the second count of the complaint is sufficient to withstand a motion to dismiss under Civ.R. 12(B)(6).

        64

                By contrast, the first and third counts of Leichtman's complaint do not state claims upon which relief can be granted. The trial court correctly granted the Civ.R. 12(B)(6) motion as to both counts. In his first count, Leichtman alleged a tortious invasion of his privacy. See, generally, Restatement, supra, at 376, Section 652B, as adopted by Sustin v. Fee (1982), 69 Ohio St.2d 143, 145, 23 O.O.3d 182, 183-184, 431 N.E.2d 992, 993. A claim for invasion of privacy may involve any one of four distinct torts. Prosser, Privacy (1960), 48 Cal.L.Rev. 383. The tort that is relevant here requires some substantial intrusion into a plaintiff's solitude, seclusion, habitation, or affairs that would be highly [634 N.E.2d 700] offensive to a reasonable person. See, e.g., Restatement, supra, at 378-379, Section 652B, Comments a to d; Killilea v. Sears Roebuck & Co. (1985), 27 Ohio App.3d 163, 166, 27 OBR 196, 198-199, 499 N.E.2d 1291, 1294. Leichtman acknowledges that he willingly entered the WLW radio studio to make a public radio appearance with Cunningham, who is known for his blowtorch rhetoric. Therefore, Leichtman's

        66

        Page 237

        68

                In his third count, Leichtman attempts to create a private right of action for violation of Cincinnati Bd. of Health Reg. No. 00083, which makes it illegal to smoke in designated public places. Even if we are to assume, for argument, that a municipal regulation is tantamount to public policy established by a statute enacted by the General Assembly, the regulation has created rights for nonsmokers that did not exist at common law. Bd. of Health Reg., supra, at Sections 00083-7 and 00083-13. Therefore, because sanctions also are provided to enforce the regulation, there is no implied private remedy for its violation. R.C. 3707.99, 3707.48(C); Franklin Cty. Law Enforcement Assn. v. Fraternal Order of Police, Capital City Lodge No. 9 (1991), 59 Ohio St.3d 167, 169, 572 N.E.2d 87, 89-90; Fawcett v. G.C. Murphy & Co. (1976), 46 Ohio St.2d 245, 248-250, 75 O.O.2d 291, 293-294, 348 N.E.2d 144, 147 (superseded by statute on other grounds).

        70

                Arguably, trivial cases are responsible for an avalanche of lawsuits in the courts. They delay cases that are important to individuals and corporations and that involve important social issues. The result is justice denied to litigants and their counsel who must wait for their day in court. However, absent circumstances that warrant sanctions for frivolous appeals under App.R. 23, we refuse to limit one's right to sue. Section 16, Article I, Ohio Constitution states, "All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay."

        72

                This case emphasizes the need for some form of alternative dispute resolution operating totally outside the court system as a means to provide an attentive ear to the parties and a resolution of disputes in a nominal case. Some need a forum in which they can express corrosive contempt for another without dragging their antagonist through the expense inherent in a lawsuit. Until such an alternative forum is created, Leichtman's battery claim, previously knocked out by the trial judge in the first round, now survives round two to advance again through the courts into round three.

        74

                We affirm the trial court's judgment as to the first and third counts of the complaint, but we reverse that portion of the trial court's order that dismissed the battery claim in the second count of the complaint. This cause is remanded for further proceedings consistent with law on that claim only.

        76

                Judgment accordingly.

        78

                DOAN, P.J., and HILDEBRANDT and GORMAN, JJ., concur.

        80

        ---------------

        82 83

        1 Harmful contact: Restatement of the Law 2d, Torts (1965) 25, Section 13, cited with approval in Love v. Port Clinton (1988), 37 Ohio St.3d 98, 99, 524 N.E.2d 166, 167.

        85

        2 Offensive contact: Restatement, supra, at 30, Section 18. See, generally, Love at 99-100, 524 N.E.2d at 167, in which the court: (1) referred to battery as "intentional, offensive touching"; (2) defined offensive contact as that which is "offensive to a reasonable sense of personal dignity"; and (3) commented that if "an arrest is made by a mere touching * * * the touching is offensive and, unless privileged, is a 'battery.' " Id., 37 Ohio St.3d at 99, 524 N.E.2d at 167, fn. 3. See, also, Schultz v. Elm Beverage Shoppe (1988), 40 Ohio St.3d 326, 328, 533 N.E.2d 349, 352, fn. 2 (citing Restatement, supra, at 22, Chapter 2, Introductory Note), in which the court identified an interest in personality as "freedom from offensive bodily contacts"; Keister v. Gaker (Nov. 8, 1978), Warren App. Nos. 219 and 223, unreported (battery is offensive touching).

      • 3.2.2 Werth v. Taylor -- "The Blood-Transfusion-Refusing Jehovah's Witness"

        Should health care professionals be allowed to administer life-saving, emergency treatment when there is a possibility that the patient would have refused?

        2

        Page 426

        5
        475 N.W.2d 426

        8
        Cindy K. WERTH and Donald E. Werth, Plaintiffs-Appellants,
        v.
        Michael V. TAYLOR, M.D., Defendant-Appellee,
        and
        County of Alpena, d/b/a Alpena General Hospital, Alcona
        Citizens for Health, Inc., d/b/a Alcona Health
        Center, Cheryl L. Parsons, M.D., C.L.
        McDougall, M.D., and Mark J.
        Outman, C.R.N.A.,
        Defendants.

        11
        Docket No. 123785.
        190 Mich.App. 141, 475 N.W.2d 426

        14
        Court of Appeals of Michigan.

        17
        Submitted Jan. 16, 1991, at Lansing.
        Decided July 8, 1991, at 9:05 a.m.
        Released for Publication Oct. 28, 1991.
        19

        Page 427

        21

                [190 MICHAPP 141] Sommers, Schwartz, Silver & Schwartz, P.C. by Stanley S. Schwartz and Richard L. Groffsky, Southfield, for plaintiffs-appellants.

        23

                Stroup, Johnson & Tresidder, P.C. by Charles W. Johnson, Petoskey, for Michael V. Taylor, M.D.

        25

                Before NEFF, P.J., and SHEPHERD and McDONALD, JJ.

        27

                NEFF, Presiding Judge.

        29

                Plaintiffs, Cindy K. Werth and donald[190 MICHAPP 142] E. Werth, appeal as of right from an order of the circuit court granting summary disposition pursuant to MCR 2.116(C)(10) in favor of defendant, Michael V. Taylor, M.D. We affirm.

        32
        I
        34

                Plaintiffs filed a civil battery claim against defendant Taylor based on his authorization of a blood transfusion for Cindy Werth despite plaintiffs' refusals. Plaintiffs also filed a medical malpractice claim against Taylor and other defendants. The medical malpractice claim is not the subject of this appeal.

        36

                The facts are not in dispute. Cindy and her husband Donald are Jehovah's Witnesses. It is unquestioned that they are both devoted adherents to the tenets of their chosen faith. According to Cindy Werth's deposition testimony, one of the most deeply held of these tenets is the belief that it is a sin to receive blood transfusions.

        38

                In August 1985, Cindy, the mother of two children, became pregnant with twins. About two months before the expected date of delivery, Cindy went to Alpena General Hospital to preregister. She filled out several forms, including a "Refusal to Permit Blood Transfusion" form. Cindy went into labor on May 8, 1986, and entered Alpena General Hospital on that date. While she was being admitted, Donald signed another "Refusal to Permit Blood Transfusion" form.

        40

                Cindy gave birth to her twins on the evening of May 8, 1986. Following delivery, Cindy was found to be bleeding from her uterus. Around 11:30 p.m., Dr. Cheryl Parsons was called. She performed a pelvic examination and discovered a great deal of clotting and a fair amount of bleeding. Dr. Parsons [190 MICHAPP 143] then discussed performing a dilation of the cervix and curettage of the uterine lining (D & C). As a result, Dr. Parsons began discussing with plaintiffs their refusals of blood transfusions.

        42

                Following this discussion, Cindy was taken to surgery. In the early hours of May 9, 1986, she was placed under general anesthesia, and Dr. Parsons proceeded to perform a D & C. The bleeding, however, continued. Defendant Taylor, an anesthesiologist, was then called to the hospital to examine Cindy. Cindy's blood pressure had risen significantly. At approximately 1:30 a.m., defendant Taylor observed mottling and cooling of the skin peripherally, premature ventricular activity, oozing of crystalloid material from her eyes, and a fairly rapid and significant fall in blood pressure. These observations prompted defendant Taylor to determine that a blood transfusion was medically necessary to preserve Cindy's life. He ordered the transfusion of packed red blood cells, but before the transfusion was given, Dr. Parsons informed him that Cindy was a Jehovah's Witness. Dr. Parsons testified that defendant responded by saying something like "that may be, but she needs the blood." A blood transfusion was then given.

        44

                Plaintiffs thereafter filed their medical malpractice action, alleging negligence by various defendants, including Taylor, and alleging battery against defendant Taylor.

        46

                Defendant Taylor filed a motion for summary disposition pursuant to MCR 2.116(C)(10), arguing that because Cindy's refusal was not conscious, competent, contemporaneous, and fully informed, defendant did not commit a battery in deciding to infuse blood. The trial court granted this motion and entered an order dismissing plaintiffs' claim against defendant Taylor.

        48

        [190 MICHAPP 144]

        50

        II

        52

                Plaintiffs contend that the trial court erred in granting summary disposition where their refusal of a blood transfusion

        54

        Page 428

        56

                Defendant Taylor, on the other hand, contends that the trial court did not err in granting summary disposition, because plaintiffs did not unequivocally refuse the blood transfusion. He claims that, in the face of a life-threatening emergency, without a fully conscious and contemporaneous refusal, his decision to transfuse blood was appropriate and the court did not err in finding an implicit consent to the procedure authorized by him. Defendant Taylor also contends that the state's interest in preserving life authorized him to override plaintiffs' right to refuse blood transfusions on religious grounds. He claims that, while a patient may knowingly decline treatment, the patient has no right to demand inadequate treatment, and the courts will not require that such be committed.

        59
        III
        61

                Summary disposition based on MCR 2.116(C)(10) may be granted where, except for the amount of damages, there is no genuine issue regarding any [190 MICHAPP 145] material fact and the moving party is entitled to judgment as a matter of law.

        63

                A motion for summary disposition under this subrule tests whether there is factual support for a claim. Dumas v. Auto Club Ins. Ass'n, 168 Mich.App. 619, 626, 425 N.W.2d 480 (1988). The party opposing the motion has the burden of showing that a genuine issue of disputed fact exists. Pantely v. Garris, Garris & Garris, P.C., 180 Mich.App. 768, 773, 447 N.W.2d 864 (1989). Giving the benefit of any reasonable doubt to the nonmovant, the court must determine whether a record might be developed which will leave open an issue upon which reasonable minds could differ. Dumas, supra. All inferences are to be drawn in favor of the nonmovant. Dagen v. Hastings Mutual Ins. Co., 166 Mich.App. 225, 229, 420 N.W.2d 111 (1987). Before judgment may be granted, the court must be satisfied that it is impossible for the claim asserted to be supported by evidence at trial. Peterfish v. Frantz, 168 Mich.App. 43, 48-49, 424 N.W.2d 25 (1988).

        66
        A
        68

                A competent adult patient has the right to decline any and all forms of medical intervention, including lifesaving or life-prolonging treatment. Cruzan v. Director, Missouri Dep't of Health, --- U.S. ----, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990); In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976). See anno: Patient's right to refuse treatment allegedly necessary to sustain life, 93 A.L.R.3d 67. Indeed, the whole concept of informed consent to treatment leads to an inference of its converse--informed refusal of treatment. Put another way, a competent adult may choose to give or withhold consent to medical treatment.

        70

                [190 MICHAPP 146] However, the law implies the consent of an unconscious patient to medical procedures needed to preserve the patient's life. Delahunt v. Finton, 244 Mich. 226, 229, 221 N.W. 168 (1928). See alsoYoung v. Oakland Gen. Hosp., 175 Mich.App. 132, 139, 437 N.W.2d 321 (1989). If a physician treats or operates on a patient without consent, he has committed an assault and battery and may be required to respond in damages. Id.; Banks v. Wittenberg, 82 Mich.App. 274, 279, 266 N.W.2d 788 (1978). Consent may be expressed or implied. Young, supra; Banks, supra, p. 280, 266 N.W.2d 788. It has been held that consent is implied where an emergency procedure is required and there is no opportunity to obtain actual consent or where the patient seeks treatment or otherwise manifests a willingness to submit to a particular treatment. Young, supra; Banks, supra.

        72

        Page 429

        74

        B

        76

                Here, the trial court determined that Cindy's refusals were made when she was contemplating merely routine elective surgery and not when life-threatening circumstances, were present and concluded that it could not be said that she made the decision to refuse a blood transfusion while in a competent state and while fully aware that death would result from such refusal. The record reflects the unexpected development of a medical emergency requiring blood transfusion to prevent death or serious compromise of the patient's well-being.

        78

                The decision of the trial court is supported by one reached by the Supreme Court of Pennsylvania in In re Estate of Dorone, 517 Pa. 3, 534 A.2d 452 (1987). In Dorone, the patient was a twenty-two-year-old Jehovah's Witness who required a blood transfusion during a cranial operation to [190 MICHAPP 147] relieve an acute subdural hematoma. Without the operation or transfusion, death was imminent. The patient was unconscious, and his parents refused consent to the blood transfusion. The court overruled the parents' refusal, stating:

        80

                Turning to the ultimate decisions the judge rendered, we feel that they were absolutely required under the facts he had before him. Those facts established that medical intervention, which necessarily included blood transfusions, could preserve Mr. Dorone's life. When evidence of this nature is measured against third party speculation as to what an unconscious patient would want there can be no doubt that medical intervention is required. Indeed, in a situation like the present, where there is an emergency calling for an immediate decision, nothing less than a fully conscious contemporaneous decision by the patient will be sufficient to override evidence of medical necessity. [Id., p. 9, 534 A.2d 452.]

        82

                Here, both plaintiffs signed "Refusal to Permit Blood Transfusion" forms. Following Cindy's delivery of twins, Dr. Parsons discussed these refusals with both plaintiffs. Cindy recalled their conversation as follows:

        84

                She--okay. We told her--she said, "I understand that you're one of Jehovah's Witnesses and that you won't take blood," and Don and I both said, "That's correct." And she said, "You mean to tell me if your wife's dying on the table that you're not going to give her blood?" And we said--Don said, "That's--well, I don't want her to have blood, but I don't want her to die. We want the alternative treatment."

        86

        * * * * * *

        88

                She said there would be no problem. It was a routine D & C, there was no problem with the blood.

        90

        * * * * * *

        92

                [190 MICHAPP 148] The idea of a blood transfusion, she made it sound that it wouldn't even be a problem. Blood wouldn't come into the picture. That's how I understood it.

        94

                Donald also testified regarding the conversation as follows:

        96

                At the time of the consent form, she gave it to my wife and had her look it over and read it, and she said--she acknowledged us as being one of Jehovah's Witnesses, and then she said, "Would you accept blood?" And we replied, "No." And then she made the remark, "Even if she was to die, you'd let her die?"

        98

                And at that point, I questioned, I said, "Well, how serious of a, you know, condition was she?" And the reason why we asked that is because, like I say, in different situations like there are Witnesses who have gone to hospitals, you know, if there was some type of real emergency, a lot of times they're shipped out or flown out. Different ones have gone to Ann Arbor and other places.

        100

                So at that time, I was just kind of questioning, well, how serious was it, you know. First of all, you say it's a routine D & C; then you mention that if she was to die, and so that's why I questioned it, and then she reassured us that there was no problem, nothing to it.

        102

                The following colloquy then occurred between defense counsel and Donald:

        104

        Page 430

        106

                Q. So you never answered the question.

        108

                A. Oh, as far as the idea of dying?

        110

                Q. Yes.

        112

                A. I said no. The answer was no.

        114

                Q. Even if she was to die, you said "No blood."

        116

                A. Right.

        118

                Q. What did your wife say to that?

        120

                [190 MICHAPP 149] A. Well, she was right there and that was her feeling also.

        122

                Q. But you didn't have the feeling that that was part of the problem or a possibility? It was kind of an academic discussion, that she might die?

        124

                A. Well, she said it in a joking manner. It wasn't done as a serious matter. Being with a joking manner, that's why I asked her how serious it was and then she just--"Oh, there's no problem."

        126

                Q. Okay. So you weren't really biting the bullet because it didn't seem to be part of the problem that she was going to die or there was a risk of her dying?

        128

                A. At that point, no.

        130

                Dr. Parsons testified to the conversation as follows:

        132

                I recall discussing with her and her husband the fact that they were Jehovah's Witnesses and that she indicated that this was true. And I said, "Is it true that you do not want any blood transfusions?" She said, "No." He looked at me and said, "Do you think it's that bad?" And I said, "Not right now." And I didn't get any further answer from him in terms of whether he felt that if it became that bad he might change his mind. And I left it at that.

        134

                She also described Donald's response as "wishy-washy."

        136

                Following this discussion, Cindy underwent surgery. She was placed under general anesthesia, and Dr. Parsons performed a D & C. Cindy did not regain consciousness again until after the operation and transfusion of blood were performed. Defendant Taylor testified that he was aware, before deciding to infuse blood, that Cindy was a Jehovah's Witness. No attempt was made to bring Cindy to consciousness in order to obtain her approval, and defendant Taylor testified that this [190 MICHAPP 150] option was "foolhardy." No attempt was made to discuss his decision with Donald because defendant saw nothing to be gained from it. He did not believe Donald could give or deny permission for a blood transfusion.

        139
        C
        141

                We agree with the principle in Dorone that it is the patient's fully informed, contemporaneous decision which alone is sufficient to override evidence of medical necessity. The fact that defendant did not obtain the consent of Cindy's husband does not preclude the granting of summary disposition. It is undisputed that Cindy was unconscious when the critical decision regarding the blood transfusion to avoid her death was being made. Her prior refusals had not been made when her life was hanging in the balance or when it appeared that death might be a possibility if a transfusion were not given. Clearly, her refusals were, therefore, not contemporaneous or informed. Thus, a record could not be developed regarding Cindy's refusal which would leave open an issue upon which reasonable minds could differ.

        143

                Our holding in this case is narrow. Without contemporaneous refusal of treatment by a fully informed, competent adult patient, no action lies for battery and summary disposition was proper.

        146
        D
        148

                Because of our resolution of this case, we need not address the issue whether the trial court erred in holding that the state had a valid interest in preventing Cindy's death.

        150

                Affirmed.

    • 3.3 II.C. Beyond Physical Contact Or The Threat Thereof

      • 3.3.1 Womack v. Eldridge--"The Distressing Accusation of Molestation"

        Should we hold people accountable for causing severe distress in others, even if no physical contact—or the threat thereof—was involved?

        1
        215 Va. 338 (1974)
        2
        DANNY LEE WOMACK
        v.
        ROSALIE ELDRIDGE.
        3
        Record No. 730653.
        4

        Supreme Court of Virginia.

        5
        December 2, 1974.
        6

        Present, All the Justices.

        7

        1. Cause of action will lie for emotional distress, unaccompanied by physical injury, provided conduct is intentional or reckless, outrageous, and intolerable, causal connection is established, and emotional distress is severe. Jury question presented when jury could conclude that defendant wilfully, recklessly, intentionally and deceitfully obtained plaintiff's photograph for purposes of permitting defendant's employers to use photograph as a defense in a criminal case without considering effect such use would have on plaintiff.

        8

        2. Contention in brief, and in oral argument, as to error in trial court by party who did not assign cross-error will not be noticed.

        9

        Error to a judgment of the Circuit Court of the City of Lynchburg (formerly the Corporation Court of the City of Lynchburg). Hon. O. Raymond Cundiff, judge presiding.

        10

        William M. McClenny (McClenny Associates, on brief), for plaintiff in error.

        11

        Wm. Rosenberger, Jr. (Richard E. Spies, on brief), for defendant in error.

        12

        I'ANSON

        13

        I'Anson, C.J., delivered the opinion of the court.

        14

        Plaintiff, Danny Lee Womack, instituted this action against the defendant, Rosalie Eldridge, to recover compensatory and punitive damages for mental shock and distress allegedly caused by the defendant's willful, wanton, malicious, fraudulent and deceitful acts and conduct toward him. The question of punitive damages was stricken by the trial court and the jury returned a verdict for the plaintiff in the amount of $45,000. The trial court set aside the verdict non obstante veredicto on the ground that there could be no recovery for emotional distress in the absence 339*339 of "physical damage or other bodily harm." We granted plaintiff a writ of error. Defendant did not assign cross-error, although the record shows she excepted to many rulings in the court below and several of them are relied upon in her brief and argument before us.

        15

        Plaintiff assigned numerous errors, but the controlling question is whether one who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress absent any bodily injury.

        16

        The evidence shows that defendant had been engaged in the business of investigating cases for attorneys for many years. She was employed by Richard E. Seifert and his attorney to obtain a photograph of the plaintiff to be used as evidence in the trial of Seifert, who was charged with sexually molesting two young boys. On May 27, 1970, about 8 a.m., defendant went to plaintiff's home and upon gaining admittance told him that she was a Mrs. Jackson from the newspaper and that she was writing an article on Skateland. Defendant asked plaintiff, who was a coach at Skateland, if she could take a picture of him for publication with the article, and he readily consented.

        17

        Shortly thereafter defendant delivered the photograph to Seifert's counsel while he was representing Seifert at his preliminary hearing. Seifert's counsel showed plaintiff's photograph to the two young boys and asked if he was the one who molested them. When they replied that he was not, counsel withdrew the photograph and put it in his briefcase. However, the Commonwealth's Attorney then asked to see the photograph and requested additional information about the person shown in it. Defendant was then called to the stand and she supplied the plaintiff's name and address. Plaintiff's photograph in no way resembled Seifert, and the only excuse given by defendant for taking plaintiff's picture was that he was at Skateland when Seifert was arrested. However, the offenses alleged against Seifert did not occur at Skateland.

        18

        The Commonwealth's Attorney then directed a detective to go to plaintiff's home and bring him to court. The detective told plaintiff that his photograph had been presented in court; that the Commonwealth's Attorney wanted him to appear at the proceedings; and that he could either appear voluntarily then or he would be summoned. Plaintiff agreed to go voluntarily. When 340*340 called as a witness, plaintiff testified as to the circumstances under which defendant had obtained his photograph. He also said that he had not molested any children and that he knew nothing about the charges against Seifert.

        19

        A police officer questioned plaintiff several times thereafter. Plaintiff was also summoned to appear as a witness before the grand jury but he was not called. However, he was summoned to appear several times at Seifert's trial in the circuit court because of continuances of the cases.

        20

        Plaintiff testified that he suffered great shock, distress and nervousness because of defendant's fraud and deceit and her wanton, willful and malicious conduct in obtaining his photograph and turning it over to Seifert's attorney to be used in court. He suffered great anxiety as to what people would think of him and feared that he would be accused of molesting the boys. He had been unable to sleep while the matter was being investigated. While testifying in the instant case he became emotional and incoherent. Plaintiff's wife also testified that her husband experienced great shock and mental depression from the involvement.

        21

        The precise issue presented on this appeal has not been decided by this court.

        22

        In the recent case of Hughes Moore, 214 Va. 27, 31, 197 S.E.2d 214, 219 (1973), where we also clarified Bowles May, 159 Va. 419, 437-38, 166 S.E. 550, 557 (1932), we held that when conduct is merely negligent, not willful, wanton or vindictive, and physical impact is lacking, there can be no recovery for emotional disturbance alone. However, where emotional disturbance is accompanied by physical injury there may be a recovery for negligent conduct, notwithstanding the lack of physical impact, provided the injured party proves by clear and convincing evidence a causal connection between the negligent act, the emotional disturbance and the physical injury.

        23

        We have also said that a recovery is permitted for mental distress and physical injuries unaccompanied by actual physical contact where the injuries were caused by a willful, intentional tort. Moore Jefferson Hospital, Inc., 208 Va. 438, 441, 158 S.E.2d 124, 127 (1967).

        24

        The case of Awtrey Norfolk & W. Ry. Co., 121 Va. 284, 93 S.E. 570 (1917), relied upon by the defendant, is distinguishable on the facts from the present case. There, liability was based on 341*341 a negligent wrongful act; here, liability is based on willful, wanton, fraudulent and deceitful conduct.

        25

        Courts from other jurisdictions are not in accord on whether there can be a recovery for emotional distress unaccompanied by physical injury. However, most of the courts which have been presented with the question in recent years have held that there may be a recovery against one who by his extreme and outrageous conduct intentionally or recklessly causes another severe emotional distress. [1] Annot., 64 A.L.R.2d 100, | 8 at 120, and the many cases there cited.

        26

        The Restatement (Second) of Torts, 46 at 71, provides:

        27

        {"(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm." In comment (i) to the Restatement it is expressly stated that this rule also covers a situation where the actor knows that distress is certain, or substantially certain, to result from his conduct.

        28

        A great majority of cases allowing recovery for such a cause of action do so when the act was intentional and the wrongdoer desired the emotional distress or knew or should have known that it would likely result. Aetna Life Insurance Co. Burton, 104 Ind.App. 576, 580, 12 N.E.2d 360, 362 (1938); Kirksey

        29

        Jernigan, 45 So.2d 188, 189 (Fla. 1950); Boyle Chandler, 33 Del. 323, 329, 138 A. 273, 276 (1927); Samms v. Eccles, 11 Utah 2d 289, 293, 358 P.2d 344, 346-47 (1961); Prosser on Torts, "Infliction of Mental Distress," | 12 at 60 (4th ed. 1971).

        30

        In Samms, the Supreme Court of Utah aptly stated:

        31

        {". . . [The] best considered view recognizes an action for severe emotional distress, though not accompanied by bodily impact or physical injury, where the defendant intentionally engaged in some conduct toward the plaintiff, (a) with the purpose of inflicting emotional distress, or, (b) where any reasonable person would have known that such would result; and his actions are of such a nature as to be considered outrageous and intolerable in that they offend against the 342*342 generally accepted standards of decency and morality." (Footnote omitted; emphasis added.) 11 Utah 2d at 293, 358 P.2d at 346-47.

        32

        We adopt the view that a cause of action will lie for emotional distress, unaccompanied by physical injury, provided four elements are shown: One, the wrongdoer's conduct was intentional or reckless. This element is satisfied where the wrongdoer had the specific purpose of inflicting emotional distress or where he intended his specific conduct and knew or should have known that emotional distress would likely result. Two, the conduct was outrageous and intolerable in that it offends against the generally accepted standards of decency and morality. This requirement is aimed at limiting frivolous suits and avoiding litigation in situations where only bad manners and mere hurt feelings are involved. Three, there was a causal connection between the wrongdoer's conduct and the emotional distress. Four, the emotional distress was severe.

        33

        "It is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery, or whether it is necessarily so. Where reasonable men may differ, it is for the jury, subject to the control of the court, to determine whether, in the particular case, the conduct has been sufficiently extreme and outrageous to result in liability." Restatement (Second) of Torts, supra, at 77.

        34

        In the case at bar, reasonable men may disagree as to whether defendant's conduct was extreme and outrageous and whether plaintiff's emotional distress was severe. Thus, the questions presented were for a jury to determine. A jury could conclude from the evidence presented that defendant willfully, recklessly, intentionally and deceitfully obtained plaintiff's photograph for the purpose of permitting her employers to use it as a defense in a criminal case without considering the effect it would have on the plaintiff. There is nothing in the evidence that even suggests that plaintiff may have been involved in the child molesting cases. The record shows that the only possible excuse for involving the plaintiff was that Seifert was arrested at the place where plaintiff was employed. A reasonable person would or should have recognized the likelihood of the serious mental distress that would be caused in involving an innocent person in child molesting cases. If the two boys had hesitated in answering 343*343 that the man in the photograph was not the one who had molested them, it is evident that the finger of suspicion would have been pointed at the plaintiff.

        35

        Defendant contended in her brief, and in oral argument before us, that the trial court erred in granting instruction 1-A in that it was contradictory and misled the jury; that the amount of damages fixed by the jury was excessive; and that the action of the Commonwealth's Attorney in causing plaintiff's name to be revealed was an intervening cause which absolved her of any liability.

        36

        We will not consider those contentions because defendant did not assign cross-error. Beasley Barnes, 201 Va. 593, 598, 113 S.E.2d 62, 65 (1960); Blue Ridge Poultry and Egg Co., Inc. Clark, 211 Va. 139, 141, 176 S.E.2d 323, 325 (1970); Rule 5:7, Rules of Court.

        37

        For the reasons stated, the judgment of the court below is reversed, the jury verdict reinstated, and final judgment hereby entered for the plaintiff.

        38

        Judgment reversed, jury verdict reinstated, and final judgment.

        40

        [1] Our research reveals that at least 26 jurisdictions permit such causes of action, while apparently 7 do not.

  • 4 III. False Imprisonment: Taking Charge of Others

    Assault and battery are broad torts: they can be used to cover many different situations, perhaps including ones in which barriers or the threat of force are used to force someone to go where he or she doesn’t want to go, or to keep a person in one place without assent. Yet tort law has evolved a more specific tort to cover that particular set of situations: false imprisonment.

    What, if anything, does false imprisonment accomplish as a category that assault and battery cannot? What plausible situations could arise that would test a colloquial notion of what counts as false imprisonment, and how can we best sort those out? Are there “good” imprisonments that can come up in everyday life that should be excused from the tort’s reach?

    • 4.1 III.A. The Clash of Wills

      • 4.1.1 Lopez v. Winchell's Donut House--"The Accused Employee Who Freely Left"

        Should a defendant be liable for false imprisonment when it did not apply force, use the threat of force, nor assert its authority to confine the plaintiff?

        1
        126 Ill. App.3d 46 (1984)
        2
        466 N.E.2d 1309
        3
        JOVITA (ESTHER) LOPEZ, Plaintiff-Appellant,
        v.
        WINCHELL'S DONUT HOUSE, Defendant-Appellee.
        4
        No. 83-1656.
        5

        Illinois Appellate Court — First District (5th Division).

        6
        Opinion filed July 20, 1984.
        7

        47*47 John Panici, of Chicago, for appellant.

        8

        Hubbard, Hubbard, O'Brien & Hall, of Chicago (Frederick W. Temple and John Skapars, of counsel), for appellee.

        9

        Order affirmed.

        10

        JUSTICE LORENZ delivered the opinion of the court:

        11

        Plaintiff appeals from an order of the circuit court granting defendant corporation's motion for summary judgment. Plaintiff contends that the trial court erred in entering summary judgment against her because a genuine issue of material fact existed concerning her charge that she was falsely detained and imprisoned. For the reasons which follow, we affirm the trial court's decision.

        12

        Count I of plaintiff's unverified two-count complaint alleged that plaintiff was employed as a clerk in defendant's donut shop in Woodridge, for approximately three years; that on or about April 8, 1981, defendant, through its agents and employees, Ralph Bell and James Cesario, accused her of selling donuts without registering sales and thereby pocketing defendant's monies; and that she was falsely detained and imprisoned against her will in a room located on defendant's premises, with force, and without probable and reasonable cause, by defendant's employees. Count I of her complaint also alleged that as a result of defendant's employees' wilful and wanton false imprisonment, she was exposed to public disgrace; greatly injured in her good name and reputation; suffered, and still suffers, great mental anguish, humiliation and shock; wrongfully terminated from her employment; required to seek medical attention; all of which prevented her from attending to her usual affairs.

        13

        Defendant filed its answer on August 19, 1981, denying the material allegations of count I of plaintiff's complaint. Further, on February 9, 1983, defendant amended its answer by filling an affirmative defense that alleged, inter alia, it was a merchant; that any questioning of plaintiff by its employees was performed only after said employees had reasonable grounds to believe that plaintiff had committed 48*48 retail theft while working for defendant; that any alleged detention for questioning was limited solely to an inquiry as to whether plaintiff had failed to ring certain retail sales; and that such inquiry took place in a reasonable manner and for a reasonable length of time.

        14

        Defendant's motion for summary judgment on count I of the complaint set forth the argument that plaintiff's complaint, sounding in false imprisonment and alleging that she was held against her will by her employers in a certain room of a Winchell's Donut House, was contradicted by her testimony in a discovery deposition. Defendant argued that plaintiff testified in this deposition that she had voluntarily complied with Messrs. Bell and Cesario's request to speak privately with her regarding the matter of shortages in her register on April 9, 1981. Defendant further argued that plaintiff testified that when she no longer wished to continue her conversation with her employers, she got up and went home, electing never to return to her job.

        15

        The motion included portions of plaintiff's deposition which disclosed the following. James Cesario telephoned plaintiff at her home at 4:30 p.m. on April 9, 1981, and asked her to come down to the donut shop; he did not explain his reasons for wanting her to do so. As a result of this call, plaintiff walked to the store from her home, arriving 10 minutes later. Upon her arrival at the store, Cesario asked her to accompany him into the baking room, which was located at the rear of the store; Ralph Bell was also present in the room. After Cesario asked plaintiff to sit down, she indicated that they (Cesario and Bell) closed the door and locked it by putting a "little latch on." She stated that the two men told her that they had proof that spotters going from store to store had purchased two dozen donuts from her, but that her register had not shown the sale. After refusing her request to view the "proof," plaintiff stated that she was "too upset" to respond to their questioning regarding the length of time that her alleged "shorting" of the cash drawer had been going on.

        16

        She further stated that defendant's employees never told her that she had to answer their questions or face the loss of her job; never directly threatened to fire her; and made no threats of any kind to her during the interrogation. She further testified that she at no time during the interrogation feared for her safety; that she at no time refused to answer any question put to her; that there was never a point in the interrogation that she said, "I want to leave" and was prevented from doing so; and that she got up, left the room and went home when she first decided to do so.

        17

        Plaintiff's written response to defendant's motion for summary 49*49 judgment did not contradict the statements that she had made in her discovery deposition. In her affidavit filed in support of her response to defendant's motion for summary judgment, plaintiff averred that (1) she left the baking room after she began to shake, and when she felt that she was becoming ill; and (2) she was terminated from her employment by defendant.

        18

        The trial court entered summary judgment for defendant. Plaintiff appeals from that order. Count II of her complaint alleging defamation of character remains pending in the trial court.

        20
        OPINION
        21

        • 1-3 It is well established that summary judgment determines whether any genuine issue of material fact exists and summarily disposes of cases where no such fact exists in order to avoid congestion of trial calendars and the expense of unnecessary trials. (Loveland v. City of Lewistown (1980), 84 Ill. App.3d 190, 192, 405 N.E.2d 453.) The motion should be granted where the pleadings, exhibits, depositions and affidavits of record show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. (Ill. Rev. Stat. 1981, ch. 110, par. 2-1005(c).) In addition, discovery depositions may be used in the context of summary judgment proceedings "for any purpose for which an affidavit may be used." See 87 Ill.2d R. 212(a)(4); see also Sierens v. Clausen (1975), 60 Ill.2d 585, 588, 328 N.E.2d 559.

        22

        • 4 In ruling on a motion for summary judgment, the trial court must construe pleadings, depositions and affidavits included therein most strictly against the movant and most liberally in favor of the nonmovant. (Blaylock v. Toledo, Peoria & Western R.R. Co. (1976), 43 Ill. App.3d 35, 37, 356 N.E.2d 639.) The defendant may at any time move for summary judgment in his favor for all or any part of relief sought against him. (Kusiciel v. LaSalle National Bank (1982), 106 Ill. App.3d 333, 338.) However, because summary judgment is a drastic method of disposing of litigation, it should be granted only when the right of the movant is clear and free from doubt. Hillblom v. Ivancsits (1979), 76 Ill. App.3d 306, 310, 395 N.E.2d 119.

        23

        Plaintiff asserts that the trial court erred in granting defendant's motion for summary judgment as there exists a genuine issue of material fact. She posits that she felt compelled to remain in the baking room so that she could protect her reputation by protesting her innocence to the two men, and that she left the room once she began to shake and feel ill. Additionally, she attributes her "serious emotional upset" to her feelings of intimidation that she contends were caused 50*50 by: James Cesario's sitting directly next to her during questioning, yellow pad and pencil in hand; Ralph Bell's repeated statement that his briefcase contained proof of her guilt; and his raised voice.

        24

        • 5, 6 The common law tort of false imprisonment is defined as an unlawful restraint of an individual's personal liberty or freedom of locomotion. (Johnson v. Jackson (1963), 43 Ill. App.2d 251, 258, 193 N.E.2d 485; Shelton v. Barry (1946), 328 Ill. App. 497, 506, 66 N.E.2d 697.) Imprisonment has been defined as "any unlawful exercise or show of force by which a person is compelled to remain where he does not wish to remain or to go where he does not wish to go." (McKendree v. Christy (1961), 29 Ill. App.2d 195, 199, 172 N.E. 2d 380.) In order for a false imprisonment to be present, there must be actual or legal intent to restrain. Campbell v. Kaczmarek (1976), 39 Ill. App.3d 465, 469, 350 N.E.2d 97.

        25

        Unlawful restraint may be effected by words alone, by acts alone or both (Hassenauer v. F.W. Woolworth Co. (1942), 314 Ill. App. 569, 41 N.E.2d 979 (abstract of opinion)); actual force is unnecessary to an action in false imprisonment. (Winans v. Congress Hotel Co. (1922), 227 Ill. App. 276, 282.) The Restatement of Torts specifies ways in which an actor may bring about the confinement required as an element of false imprisonment, including (1) actual or apparent physical barriers; (2) overpowering physical force, or by submission to physical force; (3) threats of physical force; (4) other duress; and (5) asserted legal authority. Restatement (Second) of Torts secs. 38 through 41 (1965).

        26

        It is essential, however, that the confinement be against the plaintiff's will, and if a person voluntarily consents to the confinement there can be no false imprisonment. (Fort v. Smith (1980), 85 Ill. App.3d 479, 481, 407 N.E.2d 117.) "Moral pressure, as where the plaintiff remains with the defendant to clear himself of suspicion of theft * * * is not enough; nor, as in the case of assault, are threats for the future * * *. Any remedy for such wrongs must lie with the more modern tort of the intentional infliction of mental distress." Prosser, Torts sec. 11, at 45 (4th ed. 1971).

        27

        Plaintiff principally relies on the court's decision in Marcus v. Liebman (1978), 59 Ill. App.3d 337, 375 N.E.2d 486, for support of her position that summary judgment should not have been granted in the instant case. In Marcus v. Liebman, the court extensively examined the concept that threats of a future action are not enough to constitute confinement. (59 Ill. App.3d 337, 341.) There, the defendant psychiatrist threatened to have plaintiff committed to the Elgin State Hospital, and the Marcus court found that this was a present threat, 51*51 constituting false imprisonment, as opposed to a threat of future action. The court in Marcus concluded that the lower court had incorrectly directed a verdict for the defendant, and reversed and remanded the case for trial on the question of imprisonment. The court noted that plaintiff was already voluntarily committed to the psychiatric wing of a private hospital when the defendant made the threat to commit her to a state mental hospital and reasoned, "[A]t the time the alleged threat was made plaintiff was already confined. It was certainly reasonable for the plaintiff to believe that before her release [from the private hospital] commitment procedures could have been concluded." 59 Ill. App.3d 337, 341.

        28

        • 7 Our analysis of the Marcus decision, as well as the other cases cited by plaintiff, does not support plaintiff's position. All of these cases are easily distinguishable from the present case, as in each, either physical restraint or present threats of such were present.

        29

        In the case at bar, we are confronted with plaintiff's testimony, given under oath, that she voluntarily accompanied James Cesario to the baking room; that she stayed in the room in order to protect her reputation; that she was never threatened with the loss of her job; that she was never in fear of her safety; and that at no time was she prevented from exiting the baking room. Her affidavit, in which she averred that she left the baking room after she began to shake and when she felt that she was becoming ill, does not place into issue material facts which she had previously removed from contention. (Fountaine v. Hadlock (1971), 132 Ill. App.2d 343, 347, 270 N.E.2d 222.) In her discovery deposition, given under oath, she stated that she "got up and left" when Ralph Bell asked her how long the cash register "shorting" had been going on.

        30

        In the tort of false imprisonment, it is not enough for the plaintiff to have felt "compelled" to remain in the baking room in order to protect her reputation (see Prosser, Torts sec. 11 (4th ed. 1971)), for the evidence must establish a restraint against the plaintiff's will, as where she yields to force, to the threat of force or the assertion of authority. (See Restatement (Second) of Torts secs. 38 through 41 (1965).) In the present case, our search of the record reveals no evidence that plaintiff yielded to constraint of a threat, express or implied, or to physical force of any kind. Also, absent evidence that plaintiff accompanied Cesario against her will, we cannot say that she was imprisoned or unlawfully detained by defendant's employees. Finally, we find no merit to plaintiff's argument that defendant's affirmative defense constituted an admission of an unlawful restraint.

        31

        52*52 For the reasons stated above, we conclude that the trial court properly granted defendant's motion for summary judgment, as there exists no question of material fact in the present case.

        32

        Affirmed.

        33

        MEJDA, P.J., and SULLIVAN, J., concur.

      • 4.1.2 Parvi v. City of Kingston--"The Dropped Off Drunk"

        Can an otherwise-consented-to action become false imprisonment if the plaintiff no longer wants it?

        2

        Page 161

        5
        394 N.Y.S.2d 161

        8
        41 N.Y.2d 553, 362 N.E.2d 960

        11
        Donald C. PARVI, Appellant,
        v.
        CITY OF KINGSTON, Respondent, et al., Defendants.

        14
        Court of Appeals of New York.

        17
        April 5, 1977.
        19

        Page 162

        21

                David M. Barnovitz, Kingston, for appellant.

        23

                Francis X. Tucker and Vernon Murphy, Kingston, for respondent.

        25

                FUCHSBERG, Justice.

        27

                This appeal brings up for review the dismissal, at the end of the plaintiff's case, of two causes of action, both of which arise out of the same somewhat unusual train of events. One is for false imprisonment and the other for negligence. The judgment of dismissal was affirmed by the Appellate Division by a vote of three to two. The issue before us, as to each count, is whether a prima facie case was made out. We believe it was.

        29

                Bearing in mind that, at the procedural point at which the case was decided, the plaintiff was entitled to the benefit of the most favorable inferences that were to be drawn from the record (Andersen v. Bee Line, 1 N.Y.2d 169, 172, l51 N.Y.S.2d 633, 634, 134 N.E.2d 457, 458; 10 Carmody-Wait 2d, N.Y. Prac., § 70:359, p. 627 et seq.), we turn at once to the proof. In doing so, for the present we rely in the main on testimony plaintiff adduced from the defendant's own employees, especially since plaintiff's own recollection of the events was less than satisfactory.

        31

                Sometime after 9:00 p.m. on the evening of May 28, 1972, a date which occurred during the Memorial Day weekend, two poli officers employed by the defendant City of Kingston responded in a radio patrol car to the rear of a commercial building in that city where they had been informed some individuals were acting in a boisterous manner. Upon their arrival, they found three men, one Raymond Dugan, his brother Dixie Dugan and the plaintiff, Donald C. Parvi. According to the police, it was the Dugan brothers who alone were then engaged in a noisy quarrel. When the two uniformed officers informed the three they would have to move on or be locked up, Raymond Dugan ran away; Dixie Dugan chased after him unsuccessfully and then returned to the scene in a minute or two; Parvi, who the police testimony shows had been trying to calm the Dugans, remained where he was.

        33

                In the course of their examinations before trial, read into evidence by Parvi's counsel, the officers described all three as exhibiting, in an unspecified manner, evidence that they "had been drinking" and showed "the effects of alcohol". They went on to relate how, when Parvi and Dixie Dugan said they had no place to go, the officers ordered them into the police car and, pursuing a then prevailing police "standard operating procedure", transported the two men outside the city limits to an abandoned golf course located in an unlit and isolated area known as Coleman Hill. Thereupon the officers drove off, leaving Parvi and Dugan to "dry out". This was the first time Parvi had ever been there.

        35

        Page 163

        37

                No more than 350 feet from the spot where they were dropped off, one of the boundaries of the property adjoins the New York State Thruway. There were no intervening fences or barriers other than the low Thruway guardrail intended to keep vehicular traffic on the road. Before they left, it is undisputed that the police made no effort to learn whether Parvi was oriented to his whereabouts, to instruct him as to the route back to Kingston, where Parvi had then lived for 12 years, or to ascertain where he would go from there. From where the men were dropped, the "humming and buzzing" of fast-traveling, holiday-bound automobile traffic was clearly audible from the Thruway; in their befuddled state, which later left Parvi with very little memory of the events, the men lost little time in responding to its siren song. For, in an apparent effort to get back, by 10:00 p.m. Parvi and Dugan had wandered onto the Thruway, where they were struck by an automobile operated by one David R. Darling. Parvi was severely injured, Dugan was killed. (Parvi elected not to appeal from the dismissal of his cause of action against Darling, who originally had been joined as an additional defendant.)

        39

        the cause of action for false imprisonment

        41

                With these facts before us, we initially direct our attention to Parvi's cause of action for false imprisonment. Only recently, we had occasion to set out the four elements of that tort in Broughton v. State of New York,37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 93, 335 N.E.2d 310, 314, where we said that "the plaintiff must show that: (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged".

        43

                Elements (1) and (3) present no problem here. When the plaintiff stated he had no place to go, he was faced with but one alternative arrest. This was hardly the stuff of which consent is formed, especially in light of the fact that Parvi was, in a degree to be measured by the jury, then under the influence of alcohol. It is also of no small moment in this regard that the men's request to be released at a place they designated was refused. Moreover, one of the policemen testified that his fellow officer alone selected the location to which Parvi was taken; indeed, this was a place to which the police had had prior occasion to bring others who were being "run out of town" because they evidenced signs of intoxication. Further, putting aside for the time being the question of whether such an arrest would have been privileged, it can hardly be contended that, in view of the direct and willful nature of their actions, there was no proof that the police officers intended to confine Parvi.

        45

                Element (2), consciousness of confinement, is a more subtle and more interesting subissue in this case. On that subject, we note that, while respected authorities have divided on whether awareness of confinement by one who has been falsely imprisoned should be a sine qua non for making out a case (Barker v. Washburn, 200 N.Y. 280, 93 N.E. 958; Robalina v. Armstrong, 15 Barb. 247; Herring v. Boyle, 1 Cr.M. & R. 377, 149 Eng. Rep. 1126; Meering v. Grahame White Aviation Co., 122 L & T 44; see Halpern, Intentional Torts and the Restatement, 7 Buffalo L.Rev. 7; Prosser, False Imprisonment: Consciousness of Confinement, 55 Col.L.Rev. 847), Broughton, supra, 37 N.Y.2d p. 456, 373 N.Y.S.2d p. 92, 335 N.E.2d p. 313 has laid that question to rest in this State. Its holding gives recognition to the fact that false imprisonment, as a dignitary tort, is not suffered unless its victim knows of the dignitary invasion. Interestingly, the Restatement of Torts 2d ( § 42 too has taken the position that there is no liability for intentionally confining another unless the person physically restrained knows of the confinement or is harmed by it.

        47

        Page 164

        49

                However, though correctly proceeding on that premise, the Appellate Division, in affirming the dismissal of the cause of action for false imprisonment, erroneously relied on the fact that Parvi, after having provided additional testimony in his own behalf on direct examination, had agreed on cross that he no longer had any recollection of his confinement. In so doing, that court failed to distinguish between a later recollection of consciousness and the existence of that consciousness at the time when the imprisonment itself took place. The latter, of course, is capable of being proved though one who suffers the consciousness can no longer personally describe it, whether by reason of lapse of memory, incompetency, death or other cause. Specifically, in this case, while it may well be that the alcohol Parvi had imbibed or the injuries he sustained, or both, had had the effect of wiping out his recollection of being in the police car against his will, that is a far cry from saying that he was not conscious of his confinement at the time when it was actually taking place. And, even if plaintiff's sentient state at the time of his imprisonment was something less than total sobriety, that does not mean that he had no conscious sense of what was then happening to him. To the contrary, there is much in the record to support a finding that the plaintiff indeed was aware of his arrest at the time it took place. By way of illustration, the officers described Parvi's responsiveness to their command that he get into the car, his colloquy while being driven to Coleman Hill and his request to be let off elsewhere. At the very least, then, it was for the jury, in the first instance, to weigh credibility, evaluate inconsistencies and determine whether the burden of proof had been met.

        51

                Passing on now to the fourth and final element, that of privilege or justification, preliminarily, and dispositively for the purpose of this appeal, it is to be noted that, since the alleged imprisonment here was without a warrant and therefore an extrajudicial act, the burden not only of proving, but of pleading legal justification was on the city, whose failure to have done so precluded it from introducing such evidence under its general denial (Broughton v. State of New York, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 93, 335 N.E.2d 310, 312, supra; Woodson v. New York City Housing Auth., 10 N.Y.2d 30, 217 N.Y.S.2d 31, 176 N.E.2d 57).

        53

                Since the city nevertheless contends that as a matter of law a privilege to arrest was established in this case and since, as already indicated, in our view of the case there will have to be a new trial, raising the possibility of an amendment of the pleadings, we deem it appropriate to comment. The city's argument runs that a police officer is not required to arrest for drunkenness but may exercise discretion to take an intoxicated person home or to some other safe place as the circumstances dictate and that that was done here.

        55

                In Sindle v. New York City Tr. Auth., 33 N.Y.2d 293, 352 N.Y.S.2d 183, 307 N.E.2d 245, we reflected on the scope of the privileges which constitute justification. We there said (p. 297), 352 N.Y.S.2d p. 186, 307 N.E.2d p. 248 "(G)enerally, restraint or detention, reasonable under the circumstances and in time and manner, imposed for the purpose of preventing another from inflicting personal injuries or interfering with or damaging real or personal property in one's lawful possession or custody is not unlawful". Consequently, it may be that taking a person who is in a state of intoxication to a position of greater safety would constitute justification. But it is clearly not privileged to arrest such a person for the sole purpose of running him out of town, or, as further proof at the trial here established, once having arrested such a person, to follow a practice of running him out of town to avoid guardhouse chores for the police whenever there were no other prisoners in the local jail. Such acts cannot be sanctioned with the mantle of the privilege of justification. A person who has had too much to drink is not a chattel to be transported

        57

        Page 165

        59

                The Restatement of Torts 2d ( § 10, Comment d) states it well: "Where the privilege is based upon the value attached to the interest to be protected or advanced by its exercise, the privilege protects the actor from liability only if the acts are done for the purpose of protecting or advancing the interest in question. Such privileges are often called conditional, because the act is privileged only on condition that it is done for the purpose of protecting or advancing the particular interest. They are sometimes called 'defeasible', to indicate the fact that the privilege is destroyed if the act is done for any purpose other than the protection or advancement of the interest in question." It follows that, if the conduct of the officers indeed is found to have been motivated by the desire to run the plaintiff out of town, the action for false imprisonment would not have been rebutted by the defense of legal justification. For, under plaintiff's theory, the false imprisonment count does not rest on the reasonableness of the police officers' action, but on whether the unwilling confinement of the plaintiff was the result of an arrest for a nonjustified purpose.

        61

        the cause of action for negligence

        63

                The Appellate Division upheld the dismissal of the negligence cause on the ground that it was not reasonably foreseeable that a person who is under the influence of alcohol will walk approximately 350 feet in the dead of night and climb over a guardrail onto the New York Thruway. Before treating with that issue, we prefer to give our attention to the more fundamental question of the basic duty owed by the city to the plaintiff in this situation, a question somewhat obscured by the jargon of negligence terminology (Green, The Duty Problem in Negligence Cases, 28 Col.L.Rev. 1014, 29 Col.L.Rev. 255).

        65

                In that connection, we do not believe it aids our analysis of the negligence count to speculate on the duty of a police officer to arrest or not to arrest intoxicated persons. Instead, we confront directly the duty of police officers to persons under the influence of alcohol who are already in their custody, as was the case here once Parvi was compelled to enter the police car. The case law is clear that even when no original duty is owed to the plaintiff to undertake affirmative action, once it is voluntarily undertaken, it must be performed with due care (Marks v. Nambil Realty Co., 245 N.Y. 256, 258, 157 N.E. 129, 130; Glanzer v. Shepard, 233 N.Y. 236, 239, 135 N.E. 275, 276; Zelenko v. Gimbel Bros., 158 Misc. 904, 287 N.Y.S. 134, affd., 247 App.Div. 867, 287 N.Y.S. 136). As Restatement of Torts 2d ( § 324) puts it, "One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor's charge or (b) the actor's discontinuing his aid or protection, if by so doing, he leaves the other in a worse position than when the actor took charge of him".

        67

                Comment g to that section makes it evident that this duty cannot be fulfilled by placing the helpless person in a position of peril equal to that from which he was rescued. So it tells us that "if the actor has succeeded in removingthe other from a position of danger to one of safety, he cannot change his position for the worse by unreasonably putting him back into the same peril, or into a new one."

        69

                We return now to the question of whether it was reasonably foreseeable that Parvi, who appeared sufficiently intoxicated for the police to take action, when set down in the dead of night in a lonely rural setting within 350 feet of a superhighway, whose traffic noises were sure to make its presence known, might wander onto the road. To state the question is to answer it. To be sure, much has to depend on what the

        71

        Page 166

        73

                Finally, a word of clarification may be in order as to the legal role of plaintiff's voluntary intoxication. To accept the defendant's argument, that the intoxication was itself the proximate cause of Parvi's injury as a matter of law, would be to negate the very duty imposed on the police officers when they took Parvi and Dugan into custody. It would be to march up the hill only to march down again. The clear duty imposed on the officers interdicts such a result if, as the jury may find, their conduct was unreasonable (Fagan v. Atlantic Coast Line R. R. Co., 220 N.Y. 301, 307, 115 N.E. 704, 707; Black v. New York, New Haven & Hartford R. R. Co., 193 Mass. 448, 79 N.E. 797; see Restatement, Torts 2d, § 324, Illustration 3). For it is the very fact of plaintiff's drunkenness which precipitated the duty once the officers made the decision to act.

        75

                Accordingly, the order of the Appellate Division should be reversed, both causes of action reinstated and a new trial ordered, with leave to the defendant, if so advised, to move at Trial Term for leave to amend its answer to affirmatively plead a defense of justification to the cause of action for false imprisonment.

        77

                BREITEL, Chief Judge (dissenting).

        79

                I dissent. On no view of the facts should plaintiff, brought to causing his own serious injury by his voluntary intoxication, be allowed to recover from the City of Kingston for damages suffered when he wandered onto the New York State Thruway and was struck by an automobile. His attack is the familiar one on the good Samaritan, in the persons of two police officers, for not having, in retrospect, done enough.

        81

                The order of the Appellate Division should be affirmed, and the action stand dismissed.

        83

                On the night in question, the Kingston city police, responding to a complaint, found plaintiff Parvi and his companions in the midst of an uproarious argument behind a commercial establishment located on Broadway, in Kingston. Close by were railroad tracks, still in use by locomotives and freight trains. Plaintiff and his companion Dugan, both intoxicated, were asked if they had any place to go, and they said not. They were then taken to the police car, and informed that they would not be placed in jail on this holiday weekend, but, in accordance with their wishes, would instead be transported to a point out of the area where they could "sleep it off" without getting into further trouble. Dugan and Parvi repeatedly expressed their appreciation and gratitude at the option given them.

        85

                As the drive out of town proceeded, one of the men suggested a place where they might be left. The police officers, however, solicitous of the safety of their charges, declined this request, noting that the area suggested provided no shelter and, significantly, that the Thruway was "right there". As an alternative, the officers, with the consent of plaintiff and Dugan, dropped the men off at "Coleman Hill", the site of a former golf course, a spot often used by campers and equipped with several "lean-to" shelters. From the relative safety of this sheltered area, the two men, some time later, managed to wander onto the Thruway, over 350 feet away, where Dugan was killed and Parvi injured by passing automobiles.

        87

                On these facts, Parvi contends both that he was falsely imprisoned and that the city, through its police officers, was negligent. Neither claim withstands analysis, and both should fall.

        89

                In Broughton v. State of New York, 37 N.Y.2d 451, 456, 373 N.Y.S.2d 87, 92, 335

        91

        Page 167

        93

                So long as Parvi did not remain out in public, intoxicated, creating a public nuisance, and endangering his own life, the officers had no wish to interfere with Parvi's freedom of movement. Since Parvi could suggest no suitable place where the officers might take him, the officers chose another site. Apparently, Parvi and Dugan were pleased with the choice. And it should not matter that Parvi testified, although he could recall nothing else, that he was ordered into a police car "against (his) will". (On cross-examination, he said he recalled nothing that day.) Parvi's "will" was to stay where he was, intoxicated, in public. In order to deprive him of that one choice, which the officers could do without subjecting themselves to liability for false imprisonment, the officers had to transport Parvi some place else. He was given a choice as to destination. He declined it, except for his later suggestion of an unsafe place, and the officers made the choice for him. There was no confinement, and hence no false imprisonment.

        95

                Moreover, plaintiff has failed even to make out a prima facie case that he was conscious of his purported confinement, and that he failed to consent to it. His memory of the entire incident had disappeared; at trial, Parvi admitted that he no longer had any independent recollection of what happened on the day of his accident, and that as to the circumstances surrounding his entrance into the police car, he only knew what had been suggested to him by subsequent conversations. In light of this testimony, Parvi's conclusory statement that he was ordered into the car against his will is insufficient, as a matter of law, to establish a prima facie case.

        97

                Plaintiff's negligence claim is equally without merit. The police officers had no duty to leave Parvi absolutely free from danger in any form. Instead, they owed plaintiff only a duty to exercise ordinary care (Dunham v. Village of Canisteo, 303 N.Y. 498, 502, 104 N.E.2d 872, 874). That duty was discharged by leaving plaintiff at a camping ground equipped with "lean-to" shelters and removed from the holiday bustle of the city, where Parvi had been drinking for the past two or three days. Since it was not foreseeable that Parvi, rather than "sleeping off" his intoxication, would wander away, climb over a guardrail, and be struck by an automobile on the New York State Thruway, there was no breach of duty, no negligence, and hence, no liability (see Cartee v. Saks Fifth Ave., 277 App.Div. 606, 60 101 N.Y.S.2d 761, 764-765, affd., 303 N.Y. 832, 104 N.E.2d 375). If, perchance, he was in search of more drinks, there was no chance of giving him absolute safety except by locking him up. It should not be the rule, common to an era long well past, that every drunkard must be locked up on being observed as intoxicated in public.

        99

                In removing Parvi and Dugan from the center of town, the police officers were performing a recognized public function. In his intoxicated state, Parvi, with his companions, was creating a public nuisance. It had been a long-standing practice in Kingston to transport publicly intoxicated people out of the center of town. The practice was followed in this case, and it is not, in a smaller city (population 25,544), an inherently unreasonable way of dealing with public intoxication. It avoids the humiliation and degradation to the offender, of maintaining him in jail. It is a commonplace that it is no longer acceptable, albeit it still continues, to treat the intoxicated and alcoholic in this fashion, as one does criminals.

        101

        Page 168

        103

                Moreover, transplanting plaintiff from the center of town to an isolated area on the outskirts was protective of plaintiff himself. While a man in an intoxicated state can always be a hazard to himself, he is much more so when located in the center of town, in the midst of city streets, railroad tracks, molesters, muggers, street vehicles, and without shelter, than he would be in an isolated area. But one may not deprive him of reasonable access, after he recovers his sobriety, to food and other necessities. Had the police placed the two men out of reasonable access to any road, the isolation would have been inhumane. And any road would under some circumstances be dangerous. At least, the Thruway was bordered by a guardrail, and the record does not indicate the distance to the other accessible roads, including the road by which they reached Coleman Hill.

        105

                Restatement, Torts 2d, defines an act as negligent when it involves a risk of harm "of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done" ( § 291). Here, the risk was slight; the police officers obviously considered safety in choosing the camping site to deposit the two men, and reasonably regarded the site as safe. More significant, by removing Parvi from town, they removed him from a place of greater danger, and halted a public nuisance as well. The police conduct, therefore, was not unreasonable under the Restatement test. (See, also, Restatement, Torts 2d, §§ 292, 293.) The same analysis applies under section 324 of Restatement, Torts 2d, dealing with the duty of one who takes charge of helpless persons, since the officers materially improved plaintiff's position by removing him from town.

        107

                Since, therefore, there was no breach of duty to plaintiff, as a matter of law, the negligence count, too, was properly dismissed.

        109

                There is hubris in the bringing of an action of this kind. Parvi is one of a pair of drinkers, derelicts perhaps, engaged in making a public nuisance of themselves in the center of a small Hudson River Valley city on a holiday weekend. The police of that city, a tiny force, are not sisters of charity or baby-sitters.

        111

                Basically, the legal issues in this case are not difficult. And the justice issues are even less so. A drunken man, a pitiable character, is found with his companions in the middle of town. Sympathetic police officers offer to take the men any where they choose, but the poor fellows have no place to go. So, rather than locking them up for a holiday weekend, the officers deposit the men in a suburban setting, where some shelter is available. The officers are thanked for their kindness. But, in the end, the efforts of the officers are to no avail, as the drunken men wander away from safety and into danger. A tragedy, certainly. A miscalculation, perhaps. But even with the aid of hindsight, the facts in this case are not the stuff on which tort liability may be premised.

        113

                Accordingly, I dissent, and vote to affirm the order of the Appellate Division.

        115

                GABRIELLI, JONES, WACHTLER and COOKE, JJ., concur with FUCHSBERG, J.

        117

                BREITEL, C. J., dissents and votes to affirm in a separate opinion in which JASEN, J., concurs.

        119

        Order reversed, with costs to abide the event, both causes of action reinstated and a new trial granted, with leave to respondent to move at Trial Term to amend its answer.

    • 4.2 III.B. Defining 'Confinement'

      • 4.2.1 Peterson v. Sorlien -- "The Unsuccessfully Deprogrammed Daughter"

        Should we regard individuals as “falsely imprisoned” when they are provided with many opportunities to escape?

        3
        299 N.W.2d 123

        6
        Susan Louise PETERSON, Appellant,
        v.
        Paul SORLIEN, Respondent,
        Norman Jungclaus, et al., Respondents,
        Michele Perkins, Respondent.

        9
        No. 48721.

        12
        Supreme Court of Minnesota.

        15
        October 24, 1980.
        17

        Page 124

        19

        COPYRIGHT MATERIAL OMITTED

        21

        Page 125

        23

                Ranum, Quackenbush & Burke and James H. Ranum, Minneapolis, for appellant.

        25

                Gray, Plant, Mooty, Mooty & Bennett and Jeffrey R. Brooke, Minneapolis, for Sorlien.

        27

                Joseph W. Parris, Hector, for Jungclaus et al.

        29

                Wasserman & Lewis and Mark S. Wasserman, Minneapolis, for Perkins.

        31

                Heard before SHERAN, C. J., and OTIS, PETERSON, KELLY, TODD, YETKA and MAXWELL, JJ., and considered and decided by the court en banc.

        33

                SHERAN, Chief Justice.

        35

                This action by plaintiff Susan Jungclaus Peterson for false imprisonment and intentional infliction of emotional distress arises from an effort by her parents, in conjunction with other individuals named as defendants, to prompt her disaffiliation from an organization known as The Way Ministry.

        37

                At trial, the Hennepin County District Court directed a verdict in favor of defendant Paul Sorlien, plaintiff's former minister, finding the evidence proffered against

        39

        Page 126

        41

        him insufficient as a matter of law. The jury returned a verdict exonerating Mr. and Mrs. Jungclaus and the other remaining defendants of the charge of false imprisonment; however, the jury found defendants Veronica Morgel and Kathy Mills liable for intentional infliction of emotional distress, assessing against each of them $1 compensatory damages and $4,000 and $6,000 respectively as punitive damages.

        43

                Plaintiff asserts that the trial court erred by 1) failing to grant a judgment notwithstanding the verdict on the claim of false imprisonment; 2) permitting the admission of evidence concerning her involvement in The Way and its activities; 3) instructing the jury that in assessing plaintiff's credibility it could consider whether others than plaintiff were participating in the expense of the litigation; 4) directing a verdict in favor of Paul Sorlien; and 5) denying her motion to amend the complaint to substitute the proper names of defendants previously identified as John Doe, James Roe, Jane Doe and Mary Roe and to add a new cause of action.

        45

                We find that if the trial court erred in its jury instruction which outlined the factors that could be considered in assessing plaintiff's credibility and by failing to permit the substitution of proper names for defendants otherwise identified in the complaint, these errors were not of a fundamental magnitude. In all other respects, we affirm the determination of the district court.

        47

                Viewing the evidence in the light most favorable to the prevailing defendants, this case marks the emergence of a new cultural phenomenon: youth-oriented religious or psuedo-religious groups which utilize the techniques of what has been termed "coercive persuasion" or "mind control" to cultivate an uncritical and devoted following. Commentators have used the term "coercive persuasion," originally coined to identify the experience of American prisoners of war during the Korean conflict to describe the cult-induction process. The word "cult" is not used pejoratively but in its dictionary sense to describe an unorthodox system of belief characterized by "[g]reat or excessive devotion or dedication to some person, idea, or thing." Webster's New International Dictionary of the English Language Unabridged 552 (1976). Coercive persuasion is fostered through the creation of a controlled environment that heightens the susceptibility of a subject to suggestion and manipulation through sensory deprivation, physiological depletion, cognitive dissonance, peer pressure, and a clear assertion of authority and dominion. The aftermath of indoctrination is a severe impairment of autonomy and the ability to think independently, which induces a subject's unyielding compliance and the rupture of past connections, affiliations and associations. See generally Delgado, Religious Totalism: Gentle and Ungentle Persuasion under the First Amendment, 51 S.Cal.L.Rev. 1 (1977). One psychologist characterized the process of cult indoctrination as "psychological kidnapping." Id. at 23.

        49

                At the time of the events in question, Susan Jungclaus Peterson was 21 years old. For most of her life, she lived with her family on a farm near Bird Island, Minnesota. In 1973, she graduated with honors from high school, ranking second in her class. She matriculated that fall at Moorhead State College. A dean's list student during her first year, her academic performance declined and her interests narrowed after she joined the local chapter of a group organized internationally and identified locally as The Way of Minnesota, Inc.

        51

                The operation of The Way is predicated on the fund-raising activities of its members. The Way's fund-raising strategy centers upon the sale of pre-recorded learning programs. Members are instructed to elicit the interest of a group of ten or twelve people and then play for them, at a charge of $85 per participant, a taped introductory course produced by The Way International. Advanced tape courses are then offered to the participants at additional cost, and training sessions are conducted to more fully acquaint recruits with the orientation of the group and the obligations of membership. Recruits must contribute a minimum of 10 percent of their earnings to the organization;

        53

        Page 127

        55

        to meet the tithe, student members are expected to obtain part-time employment. Members are also required to purchase books and other materials published by the ministry, and are encouraged to make larger financial contributions and to engage in more sustained efforts at solicitation.

        57

                By the end of her freshman year, Susan was devoting many hours to The Way, listening to instructional tapes, soliciting new members and assisting in training sessions. As her sophomore year began, Susan committed herself significantly, selling the car her father had given her and working part-time as a waitress to finance her contributions to The Way. Susan spent the following summer in South Dakota, living in conditions described as appalling and overcrowded, while recruiting, raising money and conducting training sessions for The Way.

        59

                As her junior year in college drew to a close, the Jungclauses grew increasingly alarmed by the personality changes they witnessed in their daughter; overly tired, unusually pale, distraught and irritable, she exhibited an increasing alienation from family, diminished interest in education and decline in academic performance. The Jungclauses, versed in the literature of youth cults and based on conversations with former members of The Way, concluded that through a calculated process of manipulation and exploitation Susan had been reduced to a condition of psychological bondage.

        61

                On May 24, 1976, defendant Norman Jungclaus, father of plaintiff, arrived at Moorhead to pick up Susan following the end of the third college quarter. Instead of returning to their family home, defendant drove with Susan to Minneapolis to the home of Veronica Morgel. Entering the home of Mrs. Morgel, Susan was greeted by Kathy Mills and several young people who wished to discuss Susan's involvement in the ministry. Each of those present had been in some way touched by the cult phenomenon. Kathy Mills, the leader of the group, had treated a number of former cult members, including Veronica Morgel's son. It was Kathy Mills a self-styled professional deprogrammer, to whom the Jungclauses turned, and intermittently for the next sixteen days, it was in the home of Veronica Morgel that Susan stayed.

        63

                The avowed purpose of deprogramming is to break the hold of the cult over the individual through reason and confrontation. Initially, Susan was unwilling to discuss her involvement; she lay curled in a fetal position, in the downstairs bedroom where she first stayed, plugging her ears and crying while her father pleaded with her to listen to what was being said. This behavior persisted for two days during which she intermittently engaged in conversation, at one point screaming hysterically and flailing at her father. But by Wednesday Susan's demeanor had changed completely; she was friendly and vivacious and that night slept in an upstairs bedroom. Susan spent all day Thursday reading and conversing with her father and on Saturday night went roller-skating. On Sunday she played softball at a nearby park, afterwards enjoying a picnic lunch. The next week Susan spent in Columbus, Ohio, flying there with a former cult member who had shared with her the experiences of the previous week. While in Columbus, she spoke every day by telephone to her fiance who, playing tapes and songs from the ministry's headquarters in Minneapolis, begged that she return to the fold. Susan expressed the desire to extricate her fiance from the dominion of the cult.

        65

                Susan returned to Minneapolis on June 9. Unable to arrange a controlled meeting so that Susan could see her fiance outside the presence of other members of the ministry, her parents asked that she sign an agreement releasing them from liability for their past weeks' actions. Refusing to do so, Susan stepped outside the Morgel residence with the puppy she had purchased in Ohio, motioned to a passing police car and shortly thereafter was reunited with her fiance in the Minneapolis headquarters of The Way. Following her return to the ministry, she was directed to counsel and initiated the present action.

        67

        Page 128

        69

                1. Plaintiff seeks a judgment notwithstanding the verdict on the issue of false imprisonment, alleging that defendants unlawfully interfered with her personal liberty by words or acts which induced a reasonable apprehension that force would be used against her if she did not otherwise comply. Durgin v. Cohen, 168 Minn. 77, 209 N.W. 532 (1926). The jury, instructed that an informed and reasoned consent is a defense to an allegation of false imprisonment and that a nonconsensual detention could be deemed consensual if one's behavior so indicated, exonerated defendants with respect to the false imprisonment claim.

        71

                The period in question began on Monday, May 24, 1976, and ceased on Wednesday, June 9, 1976, a period of 16 days. The record clearly demonstrates that Susan willingly remained in the company of defendants for at least 13 of those days. During that time she took many excursions into the public sphere, playing softball and picnicking in a city park, roller-skating at a public rink, flying aboard public aircraft and shopping and swimming while relaxing in Ohio. Had Susan desired, manifold opportunities existed for her to alert the authorities of her allegedly unlawful detention; in Minneapolis, two police officers observed at close range the softball game in which she engaged; en route to Ohio, she passed through the security areas of the Twin Cities and Columbus airports in the presence of security guards and uniformed police; in Columbus she transacted business at a bank, went for walks in solitude and was interviewed by an F.B.I. agent who sought assurances of her safety. At no time during the 13-day period did she complain of her treatment or suggest that defendants were holding her against her will. If one is aware of a reasonable means of escape that does not present a danger of bodily or material harm, a restriction is not total and complete and does not constitute unlawful imprisonment. Damages may not be assessed for any period of detention to which one freely consents. See Davis & Allcott Co. v. Boozer, 215 Ala. 116, 110 So. 28 (1926); Restatement (Second) of Torts § 36, Comment a (1965); 4 Minnesota Practice JIG II, 504 G-S (2d ed.1974).

        73

                In his summation to the jury, the trial judge instructed that to deem consent a defense to the charge of false imprisonment for the entire period or for any part therein, a preponderance of the evidence must demonstrate that such plaintiff voluntarily consented. The central issue for the jury, then, was whether Susan voluntarily participated in the activities of the first three days. The jury concluded that her behavior constituted a waiver.

        75

                We believe the determination to have been consistent with the evidence. See Faniel v. Chesapeake & Potomac Telephone Co., 404 A.2d 147 (D.C.1979); Schneckloth v. Bustamonte, 412 U.S. 218, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); F. Harper & F. James, The Law of Torts § 3.10, at 235 (1956). Were the relationship other than that of parent and child, the consent would have less significance.

        77

                To determine whether the findings of the jury can be supported upon review, the behavior Susan manifested during the initial three days at issue must be considered in light of her actions in the remainder of the period. Because, it is argued, the cult conditioning process induces dramatic and non-consensual change giving rise to a new temporary identity on the part of the individuals whose consent is under examination, Susan's volitional capacity prior to treatment may well have been impaired. Following her readjustment, the evidence suggests that Susan was a different person, "like her old self." As such, the question of Susan's consent becomes a function of time. We therefore deem Susan's subsequent affirmation of defendants' actions dispositive.

        79

                In Weiss v. Patrick, 453 F.Supp. 717 (D.R. I.), aff'd, 588 F.2d 818 (1st Cir. 1978), cert. denied, 442 U.S. 929, 99 S.Ct. 2858, 61 L.Ed.2d 296 (1979), the federal district court in Rhode Island confronted a situation similar to that which faces us. Plaintiff, a devotee of the Unification Church, brought an action for false imprisonment against individuals hired by her parents to prompt her disassociation from the church. Because

        81

        Page 129

        83

        plaintiff's mother was dying of cancer, the church authorities permitted her to join her family for the Thanksgiving holiday. Met at the airport by her mother, she testified that she was restrained against her will in the home of one of the defendants and subjected to vituperative attacks against the church until she seized an opportunity to flee. Despite the evidently traumatic experience sustained by plaintiff, the district court found that she failed to demonstrate a meaningful deprivation of personal liberty, reasoning that "any limitation upon personal mobility was not her primary concern." Id. at 722. In so reasoning, the court underscored a parental right to advocate freely a point of view to one's child, "be she minor or adult." To assure freedom, the court observed, "the right of every person `to be left alone' must be placed in the scales with the right of others to communicate." Id. (quoting Rowan v. United States Post Office Department, 397 U.S. 728, 736, 90 S.Ct. 1484, 1490, 25 L.Ed.2d 736 (1970)).

        85

                In light of our examination of the record and rules of construction providing that upon review the evidence must be viewed in a manner most favorable to the prevailing party, Kuehl v. National Tea Co., 310 Minn. 48, 245 N.W.2d 235 (1976), we find that a reasonable basis existed for the verdict exonerating defendants of the charge of false imprisonment. Although carried out under colorably religious auspices, the method of cult indoctrination, viewed in a light most favorable to the prevailing party, is predicated on a strategy of coercive persuasion that undermines the capacity for informed consent. While we acknowledge that other social institutions may utilize a degree of coercion in promoting their objectives, none do so to the same extent or intend the same consequences. Society, therefore, has a compelling interest favoring intervention. The facts in this case support the conclusion that plaintiff only regained her volitional capacity to consent after engaging in the first three days of the deprogramming process. As such, we hold that when parents, or their agents, acting under the conviction that the judgmental capacity of their adult child is impaired, seek to extricate that child from what they reasonably believe to be a religious or psuedo-religious cult, and the child at some juncture assents to the actions in question, limitations upon the child's mobility do not constitute meaningful deprivations of personal liberty sufficient to support a judgment for false imprisonment.1 But owing to the threat that deprogramming poses to public order, we do not endorse self-help as a preferred alternative. In fashioning a remedy, the First Amendment requires resort to the least restrictive alternative so as to not impinge upon religious belief. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed.2d 1213 (1940).2

        87

                2. On appeal, plaintiff challenges the propriety of admissions by the trial court of evidence regarding her involvement in the activities of The Way. By charging defendants with intentional infliction of emotional distress and seeking punitive damages, plaintiff placed the state of mind of defendants at issue. For a court to award punitive damages, a plaintiff must prove that defendants acted willfully, wantonly and maliciously. Good faith is a proper defense to punitive damages, even though defendants might have been mistaken in their belief that a party was in jeopardy or that their actions were correct. Benson

        89

        Page 130

        91

        Cooperative Creamery Association v. First District Association, 276 Minn. 520, 151 N.W.2d 422 (1967). Therefore, in determining whether defendants acted with the requisite degree of malice, the trial court considered defendants' perceptions of The Way Ministry and their fears for Susan's well-being relevant and admissible.

        93

                The ability of defendants to introduce testimony of their perception of the ministry's effect upon plaintiff must be weighed against the First Amendment admonition respecting the free exercise of religion. Although religious belief is protected absolutely from governmental regulation, religiously motivated conduct is subject to a balancing test that weighs the interest of the religious group against the state's interest in regulating or forbidding the activity. Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963). A court may also afford the interest of the religious group less weight if it considers the belief giving rise to the conduct insincerely held, or if the practice is not central to the group's system of belief. Id.

        95

                At trial, defendants did not act as inquisitors, seeking to admit testimony regarding plaintiff's religious beliefs, but merely tried to show that their fears for Susan's physical and emotional well-being were well-grounded. To assess defendants' state of mind, the trial court admitted evidence purporting to illustrate defendants' fear that The Way's method of recruitment resembled a process of programmed manipulation devised to allay the suspicions and anesthetize the rational processes of its targets. Publication by The Way of a guide on "The `How' of Door to Door Witnessing," instructing recruiters to focus on "the hungry" and on "individuals whose resistance is temporarily lowered because of loneliness, worry over exams, or other adolescent crises," suggests that a reasonable basis for defendants' fears did indeed exist. The court therefore permitted references to Susan's psychological and physical condition, the extent and manner of her participation in the program of the cult, the demands of membership, and her living conditions during the summer that she "witnessed" for the cult.

        97

                The admission of evidence for the purpose of showing good faith may have the unintended effect of prejudicing a jury by bringing out facts regarding religious belief. Aware of the potential impact of such testimony, the trial judge instructed the jury on no fewer than six occasions as to the purpose of the evidence and the context in which it could be considered and upheld objections to testimony bearing on religious belief. Since an award of punitive damages rests with the discretion of the jury, Nelson v. Halvorson, 117 Minn. 255, 135 N.W. 818 (1912), to have excluded all evidence bearing a potentially prejudicial impact would have eviscerated defendants' right to defend against the charge of intentional infliction of emotional distress. We therefore find that in an action for intentional infliction of emotional distress, when the record discloses no testimony impinging upon religious belief, the introduction by defendants of relevant evidence concerning matters that plaintiff voluntarily placed in issue, such as her religious association and defendants' state of mind, was admissible and did not violate the First Amendment admonition respecting freedom of religion.

        99

                3. Plaintiff next challenges a charge to the jury by the trial judge instructing that when assessing plaintiff's credibility, the jury could properly take into account whether The Way was maintaining or financing the law suit. Plaintiff argues that the instruction, culminating after a lengthy trial involving several causes of action, extensive discovery proceedings, a plethora of motions and a number of hearings, constituted reversible error.

        101

                In the past, this court has observed that a trial court's charge to the jury must be reviewed in its entirety, interpreting the instructions as a whole and refraining from considering isolated statements without reference to context. Thomas v. Mueller, 251 Minn. 470, 88 N.W.2d 842 (1958); Lund v. Minneapolis Street Ry., 250 Minn. 550, 86

        103

        Page 131

        105

        N.W.2d 78 (1957). At trial, reference was made to whether plaintiff was the real party in interest or merely a conduit through which other parties were maintaining the action. As a matter of law, the court ruled that defense inadmissible, subsequently instructing that such facts could only be considered in determining plaintiff's credibility and ascertaining appropriate damages. In otherwise instructing the jury, the trial court clearly and accurately described the torts of false imprisonment and intentional infliction of emotional distress and ruled as a matter of law that certain defenses asserted by defendants were inapplicable. The trial court also informed the jury that evidence implicating The Way could only be considered in the limited context of establishing whether defendants acted wantonly, willfully or maliciously; that inquiry, in turn, related only to the assessment of punitive damages and not to the ultimate questions of liability.

        107

                In general we believe it unwise to sanction a jury instruction providing that when a group supports a plaintiff or derives a benefit therefrom, evidence of such support can be introduced at trial relative to the question of damages. The ultimate effect of such a ruling might deter litigants from accepting the assistance of unpopular groups fearing that this evidence could affect the disposition of a case. In NAACP v. Button, 371 U.S. 415, 83 S.Ct. 328, 9 L.Ed. 405 (1963), the United States Supreme Court held such relationships to be modes of expression and association protected under the First Amendment. Button concerned the NAACP's practice of advising individuals during informational meetings of its willingness to commence civil rights litigation on their behalf. Challenged under a statute forbidding solicitation of legal business by an organization that retains a lawyer in connection with an action to which it is neither a party nor has a pecuniary right or liability, the United States Supreme Court found the statute unconstitutional.

        109

                The purpose of a jury instruction is to convey a clear and correct understanding of the law of the case as it relates to all the parties involved. A charge that is substantially correct is sufficient when an error has not been given such undue prominence as to obscure issues of primary significance. St. George v. Lollis, 209 Minn. 322, 296 N.W. 523 (1941); See Gibbon Farmers Elevator Co. v. Herschmann, 160 Minn. 326, 200 N.W. 293 (1924). Therefore, although we find that the trial court may have erred in instructing that the jury could consider evidence of the cult's financial support in assessing plaintiff's credibility, because the instruction constituted a small part of an otherwise commendable exposition and did not affect the ultimate disposition of the case as evidenced by the award of $10,000 in punitive damages, we hold that the commission of the error, if any, does not merit reversal.

        111

                4. Plaintiff further challenges the decision of the trial court, charging that the court erred by directing a verdict in favor of the plaintiff's former minister, Paul Sorlien. In so doing, plaintiff attributes to Paul Sorlien a degree of participation in the events in question that bears no relation to the actual facts of the case.

        113

                The active involvement of Paul Sorlien began when he accompanied his parishioner, Norman Jungclaus, to Moorhead, Minnesota to pick Susan up at the close of her examinations and then drove them to Minneapolis to the home of Veronica Morgel. Sorlien had become concerned about Susan following conversations with her parents and was previously acquainted with Morgel by reason of an informational seminar that they both attended on the subject of religious cults. The trio arrived at the Morgel residence at approximately 7 p. m. at which time Sorlien was called away to assist a parishioner who had been transferred unexpectedly to a Minneapolis hospital. Sorlien returned at approximately 11 p. m. and consequently was unaware of the circumstances surrounding Susan's removal to the downstairs bedroom. Susan became hysterical when he walked downstairs to greet her, and he therefore immediately left the room. The next day Sorlien again entered the room and observed Susan curled up in a

        115

        Page 132

        117

        fetal position with her fingers in her ears. Upon seeing him, Susan once again became hysterical. Sorlien attributed her hysterical reactions to her indoctrination by The Way that ministers are "adversary, part of the devil." Sorlien spent the remainder of the day visiting three parishioners in three different metropolitan hospitals. On Wednesday, Sorlien was present but not party to a conversation between Susan and another individual but later that afternoon Sorlien exchanged pleasantries with Susan and noticed that her appearance and demeanor were markedly different. On Thursday, he returned to Bird Island to make funeral arrangements for a parishioner and to teach a confirmation class. He had no other significant contacts or conversations with the Jungclauses or Susan following his departure.

        119

                Under the applicable standard recently reiterated in J. N. Sullivan & Associates, Inc. v. F. D. Chapman Construction Co., 304 Minn. 334, 231 N.W.2d 87 (1975), we find the evidence against Paul Sorlien insufficient to present a question of fact for the jury to decide, and accordingly, uphold the directed verdict of the trial court.3

        121

                5. As a final matter, plaintiff appeals the denial by the trial court of her motion to amend the complaint for the purpose of substituting the proper names of those previously identified in the complaint as John Doe, James Roe, Jane Doe and Mary Roe. Also included in the above motion was the further request to include an additional cause of action for civil conspiracy under 42 U.S.C. § 1985 (1976).4

        123

                Minn.R.Civ.P. 9.08 provides that when a litigant in his pleadings alleges ignorance as to the name of an opposing party, the opposing party may be designated by any name; after discovery of the true name, the pleadings may be amended accordingly. By identifying the parties in such manner, defendants are on notice that the complaint will be amended. Because of the perfunctory nature of the rule, we conclude that the trial court erred by failing to permit the substitution. See LaSalle Cartage Co. v. Johnson Brothers Wholesale Liquor Co., 302 Minn. 351, 225 N.W.2d 233 (1974). In respect to that part of the motion seeking the addition of a new federal cause of action, however, we find the trial court did not err. The addition of a new cause of action almost a year after commencement of the suit would have likely delayed the start of trial or prejudiced the adverse party. Leave to amend will only be granted when justice so requires. Minn.R. Civ.P. 15.01.

        125

                Neither in her brief nor in her notice of appeal does plaintiff indicate what relief she seeks as a result of this error. Because plaintiff only sought punitive damages of $10,000, for which she had already been compensated, the substitution of the remaining defendants would only have resulted in a symbolic award. Hence, under Minnesota's harmless error rule, the refusal of the trial court to take such action did not appear to affect the substantial rights of the parties. Minn.R.Civ.P. 61. We therefore hold that the failure of the trial court to permit the substitution of the true and correct name of a party joined in a complaint

        127

        Page 133

        129

        by a fictitious name does not constitute reversible error when doing so would have resulted only in a symbolic award.

        131

                Affirmed.

        133

        ---------------

        135 136

        Notes:

        139

        1. Plaintiff in her motion for a judgment notwithstanding the verdict stated that she wished to recover only nominal damages against her parents. This court has held that a judgment for defendant will not be reversed on appeal simply to allow a plaintiff to recover nominal damages. Erickson v. Midland Nat'l Bank & Trust Co., 205 Minn. 224, 285 N.W. 611 (1939).

        142

        2. While we decline at this time to suggest a particular alternative, we observe that some courts have permitted the creation of temporary guardianships to allow the removal of cult members to therapeutic settings. If the individuals desire, at the end of the conservatorship they may return to the cult. Actions have also been initiated against cult leaders on the basis of criminal liability. See generally Delgado, supra, at 73-97.

        145

        3. At trial, plaintiff sought the production of personal correspondence between Sorlien and his bishop. The trial court denied discovery ruling that the documents sought were not reasonably calculated to lead to relevant evidence under Minn.R.Civ.P. 26.02(1). On appeal, plaintiff argues that the trial court's failure to permit discovery was mistakenly based on Minn.Stat. § 595.02, subd. 3 (1978), imposing a clergyman-penitent privilege, which plaintiff argued was not relevant to the facts of the case. While we disagree with plaintiff's characterization of the ruling of the trial court, because we deem the directed verdict proper, the issue is moot.

        148

        4. In respect to § 1985, a federal district court recently held that where defendant was motivated by paternal concerns for a plaintiff's health and well-being and not from the abhorrence of plaintiff's religious views, plaintiff failed to establish the existence of a class-based animus necessary to allege a violation under 42 U.S.C. § 1985 (1976). Weiss v. Patrick, 453 F.Supp. 717 (D.R.I.), aff'd, 588 F.2d 818 (1st Cir. 1978), cert. denied, 442 U.S. 929, 99 S.Ct. 2858, 61 L.Ed.2d 296 (1979).

        150

        ---------------

        152

                PETERSON, Justice (concurring specially).

        154

                I concur in the result.

        156

                AMDAHL and SIMONETT, JJ., not having been members of this court at the time of the argument and submission, took no part in the consideration or decision of this case.

        158

                WAHL, Justice (dissenting in part, concurring in part).

        160

                I must respectfully dissent. In every generation, parents have viewed their children's religious and political beliefs with alarm and dismay if those beliefs were different from their own. Under the First Amendment, however, adults in our society enjoy freedoms of association and belief. In my view, it is unwise to tamper with those freedoms and with longstanding principles of tort law out of sympathy for parents seeking to help their "misguided" offspring, however well-intentioned and loving their acts may be. Whether or not, as the majority opinion asserts, The Way of Minnesota, Inc. is a "youth-oriented," "pseudo-religious group" which pursues its "fundraising strategy" in such a way as to inflict physical and psychological harm on its members, emphasis on this characterization beclouds the purely legal issues which are presented by this appeal.

        162

                The first of those legal issues is whether, as a matter of law, any of the defendants in this case are guilty of false imprisonment of the plaintiff. The elements of the tort of false imprisonment are (1) words or acts by defendant intended to confine plaintiff, (2) actual confinement, and (3) awareness by plaintiff that she is being confined. Blaz v. Molin Concrete Products Co., 309 Minn. 382, 244 N.W.2d 277 (1976). Any imprisonment "which is not legally justifiable" is false imprisonment, Kleidon v. Glascock, 215 Minn. 417, 10 N.W.2d 394 (1943); therefore, the fact that the tortfeasor acted in good faith is no defense to a charge of false imprisonment. Accord, Strong v. City of Milwaukee, 38 Wis.2d 564, 157 N.W.2d 619 (1968). Thus, although the majority opinion correctly concludes that evidence concerning the activities of The Way and the impact of those activities upon plaintiff may have been relevant to the question of whether defendants acted so willfully and maliciously as to justify an award of punitive damages, such evidence has little bearing on the issue of defendants' liability for false imprisonment.

        164

                The unrebutted evidence shows that defendant Norman Jungclaus, the father of the 21-year-old plaintiff in this case, took his adult daughter, kicking and screaming, to a small bedroom in the basement of the Morgel home on Monday, May 23. Norman Jungclaus admitted that she did not go with him willingly. Plaintiff curled up on the bed, plugged her ears, and cried. Defendant Perkins testified that plaintiff screamed and cried and pleaded with several people to let her go, but her pleas were ignored. This situation continued until 3 a. m. Tuesday. At one point that morning, plaintiff flew at her father, and he held her arms around her from the back, in his words, "for maybe a half an hour, until she calmed down again." Plaintiff testified that defendant Mills told her papers had been drafted to commit her to Anoka State Hospital if she continued to refuse to cooperate with the "deprogramming."

        166

                In its memorandum accompanying the order denying plaintiff's motion for judgment notwithstanding the verdict, the trial court stated:

        168

                It should be noted that there must be considerable room for doubt concerning that portion of the verdict finding that Norman Jungclaus did not participate in a false imprisonment. The evidence is unrebutted that he picked up his 21-year-old daughter Susan and took her into the basement without her permission or consent, and against her will. She remained there several days. However, Plaintiff stated that she was not seeking

        170

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        172

        compensatory damages against her parents, and only $1.00 in punitive damages.

        174

                In that light, judgment notwithstanding verdict as to false imprisonment would be of no significance in the matter of compensatory damages. And whether or not Mr. Jungclaus's act was done maliciously or willfully so as to justify $1.00 punitive damages is clearly a matter for determination by the jury; and not the Court. Hence, judgment notwithstanding verdict against Norman Jungclaus as to false imprisonment must be denied. On practical grounds, a new trial will not be ordered for a potential $1.00 recovery in any event.

        176

                Thus, the trial court refused to grant judgment against Norman Jungclaus because any damages awarded would be insignificant. However, plaintiff's complaint sought not only money damages but an injunction against further interference with her freedoms of religion, association, and expression. The value to plaintiff of a judgment in her favor, while not monetary, is nevertheless significant.

        178

                The majority opinion finds, in plaintiff's behavior during the remainder of the 16-day period of "deprogramming," a reasonable basis for acquitting defendant Jungclaus of the false imprisonment charge for the initial three days, during which time he admittedly held plaintiff against her will. Under this theory, plaintiff's "acquiescence" in the later stages of deprogramming operates as consent which "relates back" to the events of the earlier three days, and constitutes a "waiver" of her claims for those days. Cases cited by the majority do not lend support to this proposition. Bustamonte addressed the meaning of "voluntary consent" to the search of an automobile by police in the context of a challenge based on Fourth Amendment grounds. In Faniel the court found that an employee, who was given a ride to her home by company personnel who intended to recover unauthorized electrical equipment, had not proved an absence of lawful consent sufficient to sustain a finding of false imprisonment.1

        180

                Moreover, Weiss does not lend support to the majority's finding. While it is true that in Weiss the plaintiff testified that she was forcibly detained against her will, the court found her testimony not credible. Id. at 721. The court there found only that parents

        182

                have the right which all citizens have to peaceably dissuade Plaintiff of her particular religious views, provided they use no form of unlawful compulsion to effect their purpose. What occurred here was simply an effort, in private, to persuade a willing listener to disavow the tenets of the Unification Church. * * *

        185
        * * * * * *
        187

                It is clear that Plaintiff has the right to be free of any coercive attempt to speak with her * * *.

        189

                Id. at 722.

        191

                Certainly, parents who disapprove of or disagree with the religious beliefs of their adult offspring are free to exercise their own First Amendment rights in an attempt, by speech and persuasion without physical restraints, to change their adult children's minds. But parents who engage in tortious conduct in their "deprogramming" attempts do so at the risk that the deprogramming will be unsuccessful and the adult children will pursue tort remedies against their parents. To allow parents' "conviction that the judgmental capacity of their [adult] child is impaired [by her religious indoctrination]" to excuse their tortious conduct sets a dangerous precedent.

        193

                Here, the evidence clearly supported a verdict against Norman Jungclaus on the false imprisonment claim, and no reasonable basis existed for denying judgment notwithstanding the verdict. The trial court's holding in this regard should be reversed.

        195

                The second issue which particularly concerns me was the instruction by the trial

        197

        Page 135

        199

        court that the jury could consider the fact that The Way paid plaintiff's legal bills in assessing her credibility and awarding damages. I concur with the court's holding that such an instruction is error, although in the context of this case harmless error. I write to emphasize the compelling reasons why such an instruction should not be given. First, the fact that The Way aided and encouraged plaintiff to bring the lawsuit has little to do with whether the defendants falsely imprisoned the plaintiff or whether they intentionally inflicted emotional distress on her. It is not uncommon for a layperson to talk to others and get advice before bringing a lawsuit. Nor is it uncommon for groups to provide money and other support to its members as they pursue individual causes of action. The contributions of the NAACP, which financially assists litigation aimed at eliminating racial barriers, were recognized, as the majority opinion notes, in NAACP v. Button, 371 U.S. 415, 431, 83 S.Ct. 328, 337, 9 L.Ed. 405 (1963). Such aid not only allows a person to exercise his or her right to seek redress through our courts, it also effectuates that fundamental underpinning of our judicial system.

        201

                In the instant case, to admit evidence that The Way paid plaintiff's attorneys fees improperly shifted the jury's attention from the nature of defendants' acts to the acceptability of The Way. Such a shift of attention could unduly prejudice plaintiff because she exercised her First Amendment right of association with an unpopular religious group.

        203

                Furthermore, that evidence was irrelevant to the motive for her claim for damages. The reason plaintiff altered the amounts of compensation sought from her parents was, according to her testimony, her belief that she had to sue for money. Only after the suit was commenced did she learn that she could sue for legal protection. Plaintiff was entitled to seek compensation from the defendants individually, all together, or in any combination. Therefore, that she chose to sue her parents for a token amount has little to do with who was paying the legal fees.

        205

                The fact that a group or others support a plaintiff and may derive some benefit unrelated to plaintiff's cause of action should not be introduced at trial and considered by the jury as it determines plaintiff's credibility and the amount of damages to be awarded. The ultimate effect can only be to deter plaintiffs and defendants from accepting assistance from groups or causes which may not be popular in our society. This would mean that in suits like the present one, plaintiffs with unpopular beliefs who cannot afford costly legal representation must forgo their rights to seek redress in our courts or utilize the courts at the risk that evidence of support from their minority religious or political group may be used to undermine all or part of their claims.

        207

                Lastly, I would address plaintiff's claim that the trial court erred in denying her motion to amend her complaint or add a new cause of action. I agree that the motion was properly denied because it was untimely, but I would not conclude, as suggested by footnote 4 of the majority opinion, that defendant parents' attempts to "deprogram" their daughter from her religious beliefs did not constitute a violation of her rights under 42 U.S.C. § 1985(3). Although one federal court has so held, see Weiss v. Patrick, 453 F.Supp. 717, 722 (D.R. I.), aff'd, 588 F.2d 818 (1st Cir. 1978), cert. denied, 442 U.S. 929, 99 S.Ct. 2858, 61 L.Ed.2d 296 (1979), a number of courts have reached the contrary conclusion. In Augenti v. Cappellini, 84 F.R.D. 73 (M.D.Pa.1979), for example, defendants' arguments that their attempts to deprogram their son "were motivated solely by parental concern * * * to further his physical and mental health" did not persuade the court that the "invidiously discriminatory animus" necessary for a § 1985(3) action was lacking. Id. at 78. Several other cases interpreting the legislative history of § 1985(3) have determined that the protection of the provisions does extend to religious groups. See Jackson v. Associated Hospital Service, 414 F.Supp. 315 (E.D.Pa.1976), aff'd, 549 F.2d 795 (3rd Cir.), cert. denied, 434 U.S. 832, 98

        209

        Page 136

        211

        S.Ct. 117, 54 L.Ed.2d 93 (1977); Rankin v. Howard, 457 F.Supp. 70, 74-75 (D.Ariz. 1978); cf. Mandelkorn v. Patrick, 359 F.Supp. 692, 697 (D.D.C.1973). In reaching this conclusion, the court in Baer v. Baer, 450 F.Supp. 481 (N.D.Cal.1978) observed:

        213

                While religious status may differ from racial status because it is not a congenital and inalterable trait, membership in a minority religious group, like membership in a minority racial group, has often excited the fear, hatred and irrationality of the majority. Two thousand years of human history compellingly prove that no easier road to martyrdom is found than in adherence to an unpopular religious faith. For these reasons, and because the legislative history does not indicate otherwise, this court concludes that religious discrimination may be encompassed by the terms of § 1985(3).

        215

                Id. at 491.

        217

        ---------------

        219 220

        Notes:

        223

        1. Indeed, People v. White, 53 Mich.App. 51, 218 N.W.2d 403 (1974), affirming the defendant's conviction for attempted kidnapping, held that later consent does not relate back to previous acts by defendant. Id. at 55-56, 218 N.W.2d at 405.

        225

        ---------------

        227

                OTIS, Justice (dissenting in part).

        229

                I join in the views expressed by Justice Wahl, and particularly take issue with a rule which authorizes what is euphemistically described as "limitations upon the adult child's mobility" whenever a parent, or indeed a stranger acting for a parent, subjectively decides, without the benefit of a professional opinion or judicial intervention, that the adult child's "judgmental capacity" is impaired and that she should be "extricated" from what is deemed to be a religious or pseudo-religious cult.

        231

                The rule adopted by the majority states:

        233

                We hold that where parents, or their agents, acting under the conviction that the judgmental capacity of their adult child is impaired, seek to extricate that child from what they reasonably believe to be a religious or pseudo-religious cult, and the child at some juncture assents to the actions in question, limitations upon the child's mobility do not constitute meaningful deprivations of personal liberty sufficient to support a judgment for false imprisonment.

        235

                We furnish no guidelines or criteria for what constitutes "impaired judgmental capacity" other than the fact that the adult child has embraced an unorthodox doctrine with a zeal which has given the intervenor cause for alarm, a concern which may be well-founded, ill-founded, or unfounded.

        237

                Nor do we specify whether the "cult" must be for a benign or a malevolent purpose. It is enough that the intervenor has reason to believe it is a cult i. e. "an unorthodox system of belief" and that at some juncture during the adult child's involuntary confinement, she "assents," that is to say, yields or surrenders, possibly from exhaustion or fatigue, and possibly for a period only long enough to regain her composure.

        239

                If there is any constitutional protection we should be slow to erode it is the right of serious-minded people, young or old, well-adjusted, or maladjusted, to search for religious or philosophical fulfillment in their own way and in their own time without the interference of meddling friends or relatives, however well-intentioned they may be.

        241

                At age 21, a daughter is no longer a child. She is an adult. Susan Peterson was not only an adult in 1976 but she was a bright, well-educated adult. For whatever reason, she was experiencing a period of restlessness and insecurity which is by no means uncommon in students of that age. But to hold that for seeking companionship and identity in a group whose proselyting tactics may well be suspect, she must endure without a remedy the degrading and humiliating treatment she received at the hands of her parents, is, in my opinion, totally at odds with the basic rights of young people to think unorthodox thoughts, join unorthodox groups, and proclaim unorthodox views. I would reverse the denial of recovery as to that cause of action.

    • 4.3 III.C. "Good" Imprisonments - Exceptions to False Imprisonment Liability

      • 4.3.1 Eilers v. Coy--"The Falsely Consenting Cultist"

        Should we recognize false imprisonment in situations where the confinement is arguably for the plaintiff’s own good? Should consent excuse the defendant’s liability for false imprisonment, even if it is feigned?

        3
        582 F.Supp. 1093

        6
        William EILERS, Plaintiff,
        v.
        Deborah Ann COY, Daniel Charles Graham, Robert Lewis Brandyberry, Larry Bisman, Vincent Jennings, Defendants.

        9
        Civ. No. 4-82-1329.

        12
        United States District Court, D. Minnesota, Fourth Division.

        15
        March 6, 1984.
        17

        Page 1094

        19

                Lee Boothby and Robert A. Yingst, Boothby, Huff & Yingst, Berrien Springs, Mich., for plaintiff.

        21

                William M. Schade, Somsen, Dempsey & Schade, New Ulm, Minn., Gregory F. Kuderer, Erickson, Zierke, Kuderer, Myster, Madsen & Wollschlager, Fairmont, Minn., and Xavier E. Grenas, Houston, Tex., for defendants Deborah Ann Coy, Daniel Charles Graham and Larry Bisman.

        23

                Vincent Jennings, pro se.

        25

                Robert Lewis Brandyberry, pro se.

        28
        MEMORANDUM AND ORDER
        30

                MacLAUGHLIN, District Judge.

        32

                The plaintiff in this case, William Eilers, has moved the Court to enter a directed verdict against the defendants on his claims that the defendants falsely imprisoned him and violated his civil rights during a deprogramming attempt in 1982. Both sides have submitted briefs on the question and the Court has heard oral argument.

        34

                After careful consideration the Court has decided as follows:

        36

                1. Plaintiff's motion for a directed verdict on the issue of false imprisonment is granted and the Court holds, as a matter of law, that plaintiff William Eilers was falsely imprisoned without legal justification.

        38

                2. Plaintiff's motion for a directed verdict with respect to 42 U.S.C. § 1985(3) is granted as to certain elements of the plaintiff's claim that a conspiracy on the part of the defendants deprived him of certain of his federal constitutional rights.

        40

                FACTS

        42

                The evidence in this case has established the following facts. The plaintiff William Eilers and his pregnant wife Sandy were abducted from outside a clinic in Winona, Minnesota in the early afternoon of Monday, August 16, 1982, by their parents and

        44

        Page 1095

        46

        relatives and by the defendant deprogrammers who had been hired by the parents of the plaintiff and his wife. The plaintiff was 24 years old at the time and his wife Sandy was 22. The couple was living on a farm near Galesville, Wisconsin and had traveled to Minnesota for Sandy's pre-natal examination.

        48

                At the time of the abduction, Bill and Sandy Eilers were members of the religious group Disciples of the Lord Jesus Christ. There is ample evidence that this group is an authoritarian religious fellowship directed with an iron hand by Brother Rama Behera. There is also evidence that Bill Eilers' personality, and to some extent his appearance, changed substantially after he became a member of the group. These changes were clearly of great concern to members of the plaintiff's family. However, other than as they may have affected the intent of the parents of Bill and Sandy Eilers in the actions they took in seizing Bill and Sandy, the beliefs and practices of the Disciples of the Lord Jesus Christ should not be, and are not, on trial in this case.

        50

                While leaving the Winona Clinic on August 16, 1982 the plaintiff, who was on crutches at the time due to an earlier fall, was grabbed from behind by two or more security men, forced into a waiting van, and driven to the Tau Center in Winona, Minnesota.1 Forcibly resisting, he was carried by four men to a room on the top floor of the dormitory-style building. The windows of this room were boarded over with plywood, as were the windows in his bathroom and in the hallway of the floor. The telephone in the hallway had been dismantled.

        52

                The plaintiff was held at the Tau Center for five and one-half days and subjected to the defendants' attempts to deprogram him. Shortly after his arrival at the Tau Center, and after a violent struggle with his captors, the plaintiff was handcuffed to a bed. He remained handcuffed to the bed for at least the first two days of his confinement. During this initial period, he was allowed out of the room only to use the bathroom, and was heavily guarded during those times. On one occasion, the plaintiff dashed down the hall in an attempt to escape, but was forcibly restrained and taken back to the room. After several days of resistance, the plaintiff changed tactics and apparently pretended to consent to his confinement.

        54

                The defendants and the plaintiff's relatives had agreed in advance of the abduction that the plaintiff would be kept at the Tau Center for one week, regardless of whether the plaintiff consented to their actions. At no time during the week was the plaintiff free to leave the Tau Center, nor at any time were reasonable means of escape available to him. Three of the eight people hired by the parents were designated "security men." These individuals, described by witnesses as at least six feet tall and weighing over 200 pounds, guarded the exits on the floor at all times.

        56

                On the evening of Saturday, August 21, 1982, as the plaintiff was leaving the Tau Center to be transported to Iowa City, Iowa for further deprogramming, he took advantage of his first opportunity to escape and jumped from the car in which he was riding. Local residents, attracted by the plaintiff's calls for help, assisted the plaintiff in making his escape and the police were summoned.2

        58

                The evidence has also shown that within three weeks before the abduction occurred, the plaintiff's relatives had contacted authorities in Trempealeau County, Wisconsin in an attempt to have the plaintiff civilly committed. Family members have testified that they believed the plaintiff was suicidal because of a letter he had written to his

        60

        Page 1096

        62

        grandmother before joining the Disciples of the Lord Jesus Christ in which he wrote that demons were attacking his mind and telling him to kill himself rather than go to the Lord. Defendants' Exhibit A at 13-14. Joyce Peterson, a psychiatric social worker, interviewed the plaintiff in person on July 26, 1982. After interviewing the plaintiff and consulting with the Trempealeau County Attorney, Peterson informed the plaintiff's relatives that no legal grounds existed in Wisconsin for confining the plaintiff because he showed no signs of being a danger to himself or to others. The defendants in this case were aware of that information at the time they abducted and held the plaintiff.

        64

                DISCUSSION

        66

                In considering the plaintiff's motion for a directed verdict, the Court is required to view the evidence in the light most favorable to the defendants and to resolve all conflicts in the evidence in the defendants' favor. Dace v. ACF Industries, Inc., 722 F.2d 374, 375 (8th Cir.1983). A directed verdict motion should be granted only when reasonable jurors could not differ as to the conclusions to be drawn from the evidence. Id.

        68

                The plaintiff has alleged two main causes of action against the defendants: false imprisonment and conspiracy to deprive the plaintiff of his constitutional rights in violation of 42 U.S.C. § 1985(3). These claims will be discussed separately.

        70

                A. False Imprisonment

        72

                The plaintiff's first claim is that the defendants' conduct in confining him at the Tau Center constituted false imprisonment for which the defendants had no legal justification. False imprisonment consists of three elements:

        74

                1) words or acts intended to confine a person;

        76

                2) actual confinement; and

        78

                3) awareness by the person that he or she is confined.

        80

                Blaz v. Molin Concrete Products Co., 309 Minn. 382, 385, 244 N.W.2d 277, 279 (1976); Restatement (Second) of Torts § 35 (1965).

        82

                The evidence in this case has over-whelmingly established each of the elements of false imprisonment. By their own admission, the defendants intended to confine the plaintiff for at least one week. While the defendants maintain that their purpose was to help the plaintiff, it is not a defense to false imprisonment that the defendants may have acted with good motives. Malice toward the person confined is not an element of false imprisonment. Strong v. City of Milwaukee, 38 Wis.2d 564, 567, 157 N.W.2d 619, 621 (1968); Witte v. Haben, 131 Minn. 71, 74, 154 N.W. 662, 663 (1915); W. Prosser, Law of Torts 48 (4th ed. 1971).

        84

                There is also no question that the plaintiff was actually confined. Relying on the Minnesota Supreme Court's decision in Peterson v. Sorlien, 299 N.W.2d 123, 129 (Minn.1980), cert. denied, 450 U.S. 1031, 101 S.Ct. 1742, 68 L.Ed.2d 227 (1981), the defendants contend that there was no actual confinement because there is evidence that the plaintiff consented to the defendants' actions, at least by the fourth day of his confinement.3 The plaintiff, in contrast,

        86

        Page 1097

        88

        has testified that he merely pretended to consent in order to gain an opportunity to escape. The plaintiff's apparent consent is not a defense to false imprisonment. Many people would feign consent under similar circumstances, whether out of fear of their captors or as a means of making an escape. But in this case, unlike the Peterson case relied on by the defendants,4 it is undisputed that the plaintiff was at no time free to leave the Tau Center during the week in question, nor were any reasonable means of escape available to him. Under these circumstances, the Court finds, in agreement with many other authorities, that the plaintiff's apparent consent is not a defense to false imprisonment. 32 Am. Jur.2d False Imprisonment § 15 (1982); Restatement (Second) of Torts § 36 (1965). The Court therefore holds, as a matter of law, that the plaintiff has proven the necessary elements of false imprisonment.

        90

                The next question is, given that the defendants falsely imprisoned the plaintiff, were their actions legally justified so as to preclude liability for false imprisonment? As justification for their actions, the defendants rely on the defense of necessity. They claim that the confinement and attempted deprogramming of the plaintiff was necessary to prevent him from committing suicide or from otherwise harming himself or others. See State v. Hembd, 305 Minn. 120, 130, 232 N.W.2d 872, 878 (1975).

        92

                The defense of necessity has three elements.5 The first element is that the defendants must have acted under the reasonable belief that there was a danger of imminent physical injury to the plaintiff or to others.6 State v. Johnson, 289 Minn. 196, 199-200, 183 N.W.2d 541, 543 (1971); People v. Patrick, 126 Cal.App.3d 952, 961, 179 Cal.Rptr. 276, 282 (1981); People v. Patrick, 541 P.2d 320, 322 (Colo.Ct.App. 1975); Restatement (Second) of Torts § 892(D) comment a (1979).

        94

        Page 1098

        96

                It is not clear that such a danger existed on August 16, 1982. The alleged threats of suicide made by the plaintiff were contained in a letter dated June 14, 1982, and that letter recounted impressions the plaintiff had had some time earlier. Moreover, Joyce Peterson, the psychiatric social worker who personally interviewed the plaintiff on July 26, 1982, concluded in her report, and reported to the plaintiff's relatives, that the plaintiff was not dangerous to himself or to others. Nevertheless, viewing the evidence in the light most favorable to the defendants, the Court will assume for purposes of this motion that the plaintiff was in imminent danger of causing physical injury to himself or to others.

        98

                The second and third elements of the necessity defense are intertwined. The second element is that the right to confine a person in order to prevent harm to that person lasts only as long as is necessary to get the person to the proper lawful authorities. See State v. Hembd, 305 Minn. 120, 130, 232 N.W.2d 872, 878 (1975) (dictum); Annot., 92 A.L.R.2d 580 (1963). The third element is that the actor must use the least restrictive means of preventing the apprehended harm. People v. Patrick, 126 Cal.App.3d 952, 960, 179 Cal.Rptr. 276, 282 (1981); W. LaFave and A. Scott, Criminal Law 387 (1972); cf. Peterson v. Sorlien, 299 N.W.2d 123, 129 (Minn.1980) (where religious beliefs are implicated, first amendment requires resort to least restrictive alternative).

        100

                In this case, the defendants' conduct wholly fails to satisfy either of these elements of the necessity defense. Once having gained control of the plaintiff, the defendants had several legal options available to them. They could have:

        102

                1) turned the plaintiff over to the police;

        104

                2) sought to initiate civil commitment proceedings against the plaintiff pursuant to Minn.Stat. § 253B.07 (1982);

        106

                3) sought professional psychiatric or psychological help for the plaintiff with the possibility of emergency hospitalization if necessary pursuant to Minn.Stat. § 253B.05 (1982).

        108

                At no time did the defendants attempt, or even consider attempting, any of these lawful alternatives during the five and one-half days they held the plaintiff, the first five of which were business days. Instead, they took the plaintiff to a secluded location with boarded-up windows, held him incommunicado, and proceeded to inflict their own crude methods of "therapy" upon him — methods which even the defendants' own expert witness has condemned. Well aware that the police were searching for the plaintiff, the defendants deliberately concealed the plaintiff's location from the police.

        110

                It must be emphasized that the Minnesota Legislature has prescribed specific procedures that must be followed before a person can be deprived of his or her liberty on the basis of mental illness. Minn.Stat. § 253B.07 et seq. (1982); see generally Janus and Wolfson, The Minnesota Commitment Act of 1982: Summary and Analysis, 6 Hamline L.Rev. 41 (1983). Those procedures include examination of the proposed patient by qualified professionals, Minn.Stat. § 253B.07, subd. 1 (1982), and a judicial determination that the proposed patient is dangerous and in need of treatment, id., subd. 6. Manifold procedural protections, including the right to counsel, Minn.Stat. § 253B.03, subd. 9 (1982), are afforded the proposed patient at all stages of this civil commitment proceeding. Obviously, none of these protections were afforded the plaintiff in this case.

        112

                Minnesota law also provides that, in situations where there is not time to obtain a court order, a person may be admitted or held for emergency care and treatment in a hospital, without a court order, upon a written statement by a licensed physician or psychologist that the person is mentally ill and is in imminent danger of causing injury to himself or to others. Minn.Stat. § 253B.05, subd. 1 (1982). The defendants in this case — unlicensed and untrained individuals — made no effort to obtain any such

        114

        Page 1099

        116

        statement from a licensed physician or psychologist.

        118

                The defendants' failure to even attempt to use the lawful alternatives available to them is fatal to their assertion of the necessity defense. Where the Legislature has prescribed specific procedures that must be followed before a person can be deprived of his or her liberty on the ground of mental illness, not even parents or their agents acting under the best of motives are entitled to disregard those procedures entirely.7

        120

                The Court has assumed for the purposes of this motion that the defendants were justified in initially restraining the plaintiff based upon their belief that he was in imminent danger of harming himself or others. But even under those circumstances, the defense of necessity eventually dissipates as a matter of law. No specific time limit can be set, because the period during which an actor is acting out of necessity will vary depending on the circumstances of each case. In this particular case, however, where the defendants held the plaintiff, a 24-year-old adult, for five and one-half days with no attempt to resort to lawful alternatives available to them, the Court could not sustain a jury verdict in the defendants' favor on the issue of false imprisonment. Accordingly, the Court rules as a matter of law that the plaintiff was falsely imprisoned without justification. The issue of what amount of damages, if any, the plaintiff suffered from this false imprisonment is a question for the jury.

        122

                B. Section 1985(3)

        124

                The next claim upon which the plaintiff has moved for a directed verdict is that the defendants conspired to and did deprive him of his federal constitutional rights in violation of 42 U.S.C. § 1985(3). The Court will direct a verdict as to some, but not all, of the elements of this claim.

        126

                A cause of action under section 1985(3) consists of the following elements:

        128

                1) a conspiracy;

        130

                2) for the purpose of depriving any person or class of persons of the equal protection of the laws or of equal privileges and immunities under the laws;

        132

                3) an act or acts in furtherance of the conspiracy; and

        134

                4) an injury to the person or property of a citizen or a deprivation of the rights and privileges of any citizen.

        136

                Griffin v. Breckenridge, 403 U.S. 88, 102-03, 91 S.Ct. 1790, 1798, 29 L.Ed.2d 338 (1971).

        138

                Three of these elements are clearly present in this case. By their own admission, the defendants planned and conspired to abduct the plaintiff and to hold him against his will. They committed several acts in furtherance of this conspiracy including seizing the plaintiff at the Winona Clinic, transporting him to the Tau Center, and holding him there against his will for five and one-half days. These actions were in clear violation of the plaintiff's constitutional rights, including his right not to be deprived of liberty without due process of law, see Taylor v. Gilmartin, 686 F.2d 1346, 1358 (10th Cir.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 788, 74 L.Ed.2d 994

        140

        Page 1100

        142

        (1983), and his right to freedom of interstate travel,8 see Ward v. Connor, 657 F.2d 45, 48 (4th Cir.1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1253, 71 L.Ed.2d 445 (1982). The Court holds as a matter of law that the plaintiff has established the first, third, and fourth elements of his section 1985(3) cause of action.

        144

                The remaining element is that the conspiracy be for the purpose of depriving the plaintiff of the equal protection of the laws. The United States Supreme Court has interpreted this element as requiring that the defendants' conduct be motivated by class-based, invidiously discriminatory animus. Griffin, 403 U.S. at 102, 91 S.Ct. at 1798. In other words, in order for the plaintiff to recover under section 1985(3), the defendants must have taken action against him because of his membership in a group or class that is protected by that statute. The Court has previously ruled in this case that the religious group Disciples of the Lord Jesus Christ is a group protected by the statute. See, e.g., Taylor v. Gilmartin, 686 F.2d 1346, 1357-58 (10th Cir.1982), cert. denied, 459 U.S. 1147, 103 S.Ct. 788, 74 L.Ed.2d 994 (1983); Ward v. Connor, 657 F.2d 45, 48 (4th Cir.1981), cert. denied, 455 U.S. 907, 102 S.Ct. 1253, 71 L.Ed.2d 445 (1982); Action v. Gannon, 450 F.2d 1227, 1231-32 (8th Cir.1971) (en banc); Cooper v. Molko, 512 F.Supp. 563, 569 (N.D.Cal.1981); Comment, The Deprogramming of Religious Sect Members: A Private Right of Action Under Section 1985(3), 74 N.W.U.L.Rev. 229 (1979). The remaining question is whether the defendants took action against the plaintiff because of an animus toward that group or, as the defendants contend, because of a concern for the welfare of the plaintiff. The Court finds that the defendants' motivation is an issue upon which reasonable jurors could differ. See, e.g., Augenti v. Cappellini, 84 F.R.D. 73, 78 (M.D.Pa.1979). The Court therefore denies the plaintiff's motion for a directed verdict on this element of the plaintiff's section 1985(3) cause of action.

        146

                C. Conclusion

        148

                This will not be a popular decision. While the Court has substantial sympathy for the feelings and reactions of the parents of Bill and Sandy Eilers, this Court is sworn to uphold the law and the Constitution of the United States. If the basic rights of an American citizen are not recognized in a federal court by a federal judge, where will they be recognized?

        150

                Based on the foregoing, IT IS ORDERED that the plaintiff's motion for a directed verdict is granted as to his claim for false imprisonment (Count IV of the Second Amended Complaint), and as to certain elements of his 42 U.S.C. § 1985(3) claim (Count I of the Second Amended Complaint) described herein. The plaintiff's motion is in all other respects denied.

        152

        ---------------

        154 155

        Notes:

        158

        1. After dropping the plaintiff at the Tau Center, one of the family members drove the van to a location eight miles outside of Winona and left it there.

        161

        2. The plaintiff's wife Sandy stayed with the deprogrammers and has not returned to the group Disciples of the Lord Jesus Christ of which the plaintiff is still a member. She has since divorced the plaintiff and has sole custody of the couple's infant son.

        164

        3. In Peterson, the parents of 21-year-old Susan Jungclaus Peterson engaged deprogrammers to extricate their daughter from The Way Ministry. Peterson resisted the deprogramming for two or three days, but from then on stayed with her deprogrammers willingly for the next 13 days. At the end of the 16-day period, Peterson returned to The Way Ministry, apparently at the urging of her fiance who was also a member of the group.

        166

                Peterson then brought an action for false imprisonment against her parents, the deprogrammers, and others. After a finding for the defendants, the plaintiff appealed. Affirming the judgment for the defendants, the Minnesota Supreme Court ruled:

        168

                [W]e hold that when parents, or their agents, acting under the conviction that the judgmental capacity of their adult child is impaired, seek to extricate that child from what they reasonably believe to be a religious or psuedoreligious cult, and the child at some juncture assents to the actions in question, limitations upon the child's mobility do not constitute meaningful deprivations of personal liberty sufficient to support a judgment for false imprisonment. 299 N.W.2d at 129 (footnote omitted). The court made clear, however, that it was not endorsing the practice of deprogramming:

        170

                [O]wing to the threat that deprogramming poses to public order, we do not endorse self-help as a preferred alternative. In fashioning a remedy, the First Amendment requires resort to the least restrictive alternative so as to not impinge upon religious belief. Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed.2d 1213 (1940).

        172

                299 N.W.2d at 129 (footnote omitted).

        175

        4. As the Minnesota Supreme Court noted in its opinion, the plaintiff in Peterson had ample opportunities to escape, yet willingly chose to stay with her deprogrammers:

        177

                The record clearly demonstrates that Susan willingly remained in the company of defendants for at least 13 of [the 16] days. During that time she took many excursions into the public sphere, playing softball and picknicking in a city park, roller-skating at a public rink, flying aboard public aircraft and shopping and swimming while relaxing in Ohio. Had Susan desired, manifold opportunities existed for her to alert the authorities of her allegedly unlawful detention; in Minneapolis, two police officers observed at close range the softball game in which she engaged; en route to Ohio, she passed through the security areas of the Twin Cities and Columbus airports in the presence of security guards and uniformed police; in Columbus she transacted business at a bank, went for walks in solitude and was interviewed by an F.B.I. agent who sought assurances of her safety. At no time during the 13-day period did she complain of her treatment or suggest that defendants were holding her against her will.

        179

                Peterson v. Sorlien, 299 N.W.2d 123, 128 (Minn. 1980), cert. denied, 450 U.S. 1031, 101 S.Ct. 1742, 68 L.Ed.2d 227 (1981). In contrast, the plaintiff in this case was confined to the Tau Center, under guard, at all times and had no similar opportunities to escape.

        182

        5. The elements of the necessity defense in the criminal context, see Model Penal Code § 3.02, are analyzed in Arnolds and Garland, The Defense of Necessity in Criminal Law: The Right to Choose the Lesser Evil, 65 J.Crim.L. & Crim. 289 (1974).

        185

        6. For the purposes of this motion, the Court will assume that the defendants, as agents of the plaintiff's parents, are entitled to rely on the beliefs of the parents in this regard. See United States v. Patrick, 532 F.2d 142, 145 (9th Cir. 1976) (trial court held beliefs of parents transfer to agents; issue not raised on appeal). But see People v. Patrick, 126 Cal.App.3d 952, 962, 179 Cal.Rptr. 276, 282-83 (1981) (agents must personally believe in justifiability of their actions and must "take all appropriate steps necessary to investigate the reasonableness of the beliefs held by their principals in order to convince themselves of the necessity of criminal action").

        188

        7. The author of one of the most thorough legal analyses of the subject of deprogramming has reached the following conclusions:

        190

                (1) Involuntary deprogramming should not proceed unless there has been a prior judicial determination that the individual is incompetent or under mind control.

        192

                (2) Therapy should not proceed until milder measures, including removal to a neutral environment for a period of time, have failed.

        194

                ....

        196

                (8) Whenever possible, deprogramming should be carried out by licensed psychologists or psychiatrists, or by lay individuals working under the supervision of a psychologist or psychiatrist.

        198

                (9) Involuntary deprogramming should be carried out only pursuant to a court order and with periodic reporting to the court.

        200

                (10) The court hearing that results in a deprogramming order should be accompanied by due process protection, including the right of the individual to appear, to be represented by counsel, and to present witnesses on his own behalf.

        202

                Delgado, Religious Totalism: Gentle and Ungentle Persuasion Under the First Amendment, 51 S.Cal.L.Rev. 1, 86-88 (1977) (footnotes omitted).

        205

        8. The Court does not decide whether the defendants' actions deprived the plaintiff of his first amendment right to freedom of religion as that question is intimately tied up with the question of the defendants' motivation. As discussed below, the defendants' motivation is a question for the jury.

        207

                In any event, absent state action or state involvement, a deprivation of first amendment rights is not actionable under section 1985(3). United Bhd. of Carpenters and Joiners, Local 610 v. Scott, ___ U.S. ___, 103 S.Ct. 3352, 3357, 77 L.Ed.2d 1049 (1983).

        209

        ---------------

      • 4.3.2 Bright v. Ailshie--"The Mistaken Bounty Hunter"

        Should defendants be excused from false imprisonment liability when they mistakenly exercise otherwise-legal restraint on the wrong individual?

        1

        641 N.W.2d 587

        DENNIS BRIGHT, Plaintiff-Appellant,
        v.
        LT. LITTLEFIELD, SGT. MEYERS, OFFICER JOHN DOE #1, OFFICER JOHN DOE #2, JOHN DOE #3 also known as "ERIC," and CHESTER F. WATERHOUSE, Defendants, DOROTHY AILSHIE, TIM and A-ABLE BAIL BONDS, a Missouri company, Defendants-Appellees.
        Docket No. 119111. Michigan Supreme Court Decided April 9, 2002.
        2

        Syllabus

        3

        This syllabus was prepared by the Reporter of Decisions.

        Reporter of Decisions William F. Haggerty

        Wayne Circuit Court, Edward M. Thomas, J.

        Court of Appeals, K. F. Kelly, P.J., and Smolenski and Meter, JJ., (Docket No. 219182).

        4

        Lopatin, Miller, Freedman, Bluestone, Herskovic & Domol (by Richard E. Shaw) [3000 Town Center, Suite 1700, Southfield, MI 48075-1188] [248.213.3800] for the plaintiff-appellant.

        Athina T. Siringas [561 East Jefferson Avenue, Detroit, MI 48226] [313.962.2240], for the defendants-appellees.

        5

        Chief Justice Maura D. Corrigan

        Justices Michael F. Cavanagh, Elizabeth A. Weaver, Marilyn Kelly, Clifford W. Taylor, Robert P. Young, Jr., Stephen J. Markman

        6

        Opinion PER CURIAM

        7

        Plaintiff's first amended complaint alleged defendants were liable to him under theories of assault and battery, false imprisonment, intentional infliction of emotional distress, and negligence as a result of his being illegally arrested by a bounty hunter and taken to Missouri. In Missouri it was confirmed that the actual person who should have been sought was plaintiff's brother, who had been arrested on a drug charge there. The trial court granted summary disposition for defendants pursuant to MCR 2.116(C)(10). The Court of Appeals affirmed the dismissal, holding the existence of the facially valid Missouri arrest warrant provided authority to arrest plaintiff. We reverse the grant of summary disposition and remand for further proceedings.

        8

        I

        9

        The pertinent facts are not in dispute. We borrow the Court of Appeals statement of facts:

        10

        Plaintiff's brother Vincent Bright was arrested by Missouri police on a drug charge. Vincent identified himself as plaintiff Dennis Bright, using plaintiff's address, date of birth and social security number. Vincent entered into a bond agreement with defendant, A-Able Bail Bonds, which was issued in plaintiff's name and which Vincent signed using plaintiff's name. When Vincent subsequently absconded on the bond, an arrest warrant was issued in plaintiff's name, again using plaintiff's address, date of birth and social security number. Defendant Tim Moore apprehended plaintiff in Detroit and returned him to the Missouri court, where he was later released and the arrest warrant was amended to name Vincent. Plaintiff brought this action, alleging assault and battery, false imprisonment, intentional infliction of emotional distress and negligence. The trial court granted summary disposition to defendants, finding that the facially valid Missouri warrant provided the authority to arrest plaintiff.[(FN1)]

        11

        The Court of Appeals affirmed. Plaintiff has applied for leave to appeal.

        12

        II

        13

        The Court of Appeals held that, given probable cause, a private citizen may make an arrest for a felony committed in the person's presence or otherwise. MCL 764.16; People v Bashans, 80 Mich App 702, 713; 265 NW2d 170 (1978). It further noted that a warrant provides probable cause for an arrest, and an arrest on a facially valid warrant is not a basis for a claim of false imprisonment. Gooch v Wachowiak, 352 Mich 347, 351-354; 89 NW2d 496 (1958). It reasoned that the facially valid warrant provided the authority needed to execute it. People v Rowe, 95 Mich App 204, 208-209; 289 NW2d 915 (1980). The Court concluded that because the Missouri warrant was facially valid and the erroneous identification was not caused by defendants, the trial court did not err in granting summary disposition.

        14

        III

        15

        This case concerns the interpretation of MCL 764.16. In construing statutes, "[t]he primary goal of judicial interpretation is to ascertain and give effect to the intent of the Legislature." McJunkin v Cellasto Plastic Corp, 461 Mich 590, 598; 608 NW2d 57 (2000). To do that we examine the "language of the statute itself." In re MCI Telecommunications, 460 Mich 396, 411; 596 NW2d 164 (1999). If the language is unambiguous, the Court applies the statute as written.

        16

        IV

        17

        We deal with a plainly written statute in this matter. MCL 764.16 provides:

        A private person may make an arrest in the following situations:

        (a) For a felony committed in the private person's presence.

        (b) If the person to be arrested has committed a felony although not in the private person's presence.

        (c) If the private person is summoned by a peace officer to assist the officer in making an arrest.

        (d) If the private person is a merchant, an agent of a merchant, an employee of a merchant, or an independent contractor providing security for a merchant of a store and has reasonable cause to believe that the person to be arrested has violated section 356c or 356d of the Michigan penal code, Act No. 328 of the Public Acts of 1931, being sections 750.356c and 750.356d of the Michigan Compiled Laws, in that store, regardless of whether the violation was committed in the presence of the private person.

        18

        The plain language of subsection (b) provides authority for a private person to arrest another, if the other has committed a felony. The statute does not grant arrest authority where the other has not committed a felony even if the private person has probable cause to believe the other has committed a felony.(FN2) Notwithstanding the clarity of the Michigan statute, the Court of Appeals in Bashans incorrectly read a probable cause qualification into MCL 764.16. This may not be done. Although such authority may have existed at common law, that authority was abrogated by our Legislature in 1927. 1927 PA 175. Thus, an arrest is only justified by subsection (b) if the person to be arrested has actually committed a felony.(FN3) To proceed to arrest, no matter how manifest the likelihood the seized person is the felon, is outside the scope of subsection (b) if the seized person did not commit the felony.(FN4) In such circumstances, subsection (b) does not shield the party making the "arrest" from liability.(FN5)

        19

        Further, the Court of Appeals opinion in Rowe, which was cited by the Court of Appeals as support in this case, does not support the lower courts' conclusions. In that case, two city police officers arrested a defendant on a warrant outside their city, but inside the county where the city was located. It was claimed that they had no jurisdiction to effect the arrest outside the city. The Court disagreed, holding that they had the statutory authority to execute the warrant anywhere in the state. The Court further held that, "Pursuant to the statutes cited, when a warrant is directed to a law enforcement officer, the warrant itself provides the authority needed to execute it." Id. at 208-209. The present case is distinguishable because it does not involve an arrest by a law enforcement officer. Thus, while a warrant may give a law enforcement officer authority to execute it, it should not be construed as extending such authority to a private person. The authority for a private person to arrest in certain limited situations comes from MCL 764.16. Under its subsection (b), authority is given only when the person to be arrested has actually committed a felony.

        20

        Therefore, because it is undisputed that plaintiff had not committed a felony, defendants did not have authority to arrest him. The facially valid Missouri warrant did not, under these facts, provide the authority to arrest plaintiff.(FN6) The trial court erred in granting summary disposition. Accordingly, we reverse the judgments of the circuit court and Court of Appeals, and remand this case to the circuit court for further proceedings consistent with this opinion. MCR 7.302(F)(1).

        21

        Corrigan, C.J., and Cavanagh, Weaver, Kelly, Taylor, Young, and Markman, JJ., concurred.

        22

        Notes:

        23

        (FN1). Unpublished opinion per curiam, issued April 10, 2001 (Docket No. 219182), p 1.

        24

        (FN2). While numerous states have similar statutes, several are more expansive and essentially grant authority to private parties to arrest on the basis of reasonable cause. For example, Cal Penal Code 837 provides:

        25

        A private person may arrest another:

        1. For a public offense committed or attempted in his presence.

        2. When the person arrested has committed a felony, although not in his presence.

        3. When a felony has in fact been committed, and he has reasonable cause for believing the person arrested to have committed it.

        27

        (FN4). While the plain language of subsection (b) is dispositive, it is noteworthy that subsection (d) of MCL 764.16 authorizes a merchant (and certain affiliated parties) to make an arrest merely on the basis of "reasonable cause" to believe that a person has committed retail fraud in violation of MCL 750.356c or MCL 750.356d in the merchant's store. The absence of any such "reasonable cause" language in subsection (b) underscores that it means what it states in providing authority to arrest only if the person to be arrested has committed a felony.

        28

        (FN5). We note that this opinion is consistent with the result and basic analysis of our recent decision in People v Hamilton, 465 Mich 526; 638 NW2d 92 (2002). In Hamilton, a city police officer stopped a vehicle outside his jurisdiction and eventually arrested the driver, the defendant in Hamilton, for the misdemeanor of operating under the influence of liquor (OUIL). It was later discovered that the defendant had two prior OUIL convictions, which led to him being charged with the felony of OUIL, third offense (OUIL-3d). However, importantly, the police officer was unaware of the prior OUIL convictions at the time of the arrest. This Court concluded that the police officer lacked authority under Michigan statutes, including the statute at issue in this case, MCL 764.16, to make the arrest for the misdemeanor of simple OUIL. Id. at 530-532. However, we also concluded that the arrest did not involve a constitutional violation under the Fourth Amendment because the police officer had probable cause to suspect the defendant committed OUIL. Id. at 533. The essential holding of Hamilton was that there is no exclusionary rule requiring suppression of evidence flowing from an arrest by a police officer that is only "statutorily illegal," but does not violate the Fourth Amendment. Id. at 532-535. Obviously, the present civil case does not implicate any concerns about suppression of evidence in a criminal prosecution on the basis of police misconduct. Accordingly, there is no conflict between the dispositive holding of Hamilton and the present opinion.

        29

        However, Hamilton did include the following language that may warrant further explanation:

        30

        Under MCL 764.16, a private person has the authority to make a felony arrest, but lacks the authority to make a misdemeanor arrest except in nonapplicable circumstances. "'No one without a warrant has any right to make an arrest in the absence of actual belief, based on actual facts creating probable cause of guilt.'" People v Panknin, 4 Mich App 19, 27; 143 NW2d 806 (1966), quoting People v Bressler, 223 Mich 597, 600-601; 194 NW 559 (1923), paraphrasing People v Burt, 51 Mich 199, 202; 16 NW 378 (1883). Here, the officer only had probable cause to make an arrest for a misdemeanor, i.e., OUIL. The fact that defendant may have committed a felony, i.e., OUIL, third offense, was only discovered after the arrest. Accordingly, the officer lacked the statutory authority to make the arrest under MCL 764.16. [Id. at 531-532 (emphasis added).]

        31

        The critical point was that the police officer in Hamilton did not realize that the defendant in that case may have committed the felony of OUIL-3d. Accordingly, the officer in that case plainly did not even purport to arrest the defendant for a felony, but only for the misdemeanor of simple OUIL. Thus, MCL 764.16 did not provide authority for the misdemeanor arrest made in Hamilton. To the extent that the language from prior cases in the above quotation from Hamilton suggests that the existence of probable cause is relevant to determining whether a private person's arrest of another person for a felony is permitted by subsection (b) of MCL 764.16, it is incorrect. Rather, as explained in this opinion, the plain language of subsection (b) means that the question is whether the seized person actually committed a felony. Of course, regardless of MCL 764.16, a police officer or other state actor acting as such is constitutionally precluded by the Fourth Amendment from making an arrest without probable cause. Hamilton, supra at 533.

        32

        (FN6). Defendants argue that Moore's status as a bounty hunter insulates him from liability because of alleged wide-ranging common-law powers based in part on the bail bond contract. It is not necessary to determine the extent of those powers, if any, since plaintiff was not a party to the contract.

  • 5 V. Trespass to Chattels: The Limits of Self-Help

    Lawsuits are expensive and unwieldy. They take a lot of time – years, even. They are emotionally draining, sometimes devastating – even for winners. And a court and its enforcement mechanisms may not be available in an exigently-unfolding situation. In light of this, the law might contemplate that private actors faced with perceived wrongdoing might be given license to take matters into their own hands. Recognizing the defense of self-defense in battery is one way that the law understands that it can be better, or at least acceptable, for people to help themselves. What about less dire situations than defense of life or bodily integrity? Is it OK to chase after someone who has stolen something? To set a trap on one’s own property to deter or incapacitate wrongdoers, especially if the trap is only sprung against people who are manifestly in a place where they have no permission to be? How much should barriers to effective legal enforcement grant license to individual action, even vigilantism?

    This section’s cases look at these questions through some classic formulations – a spring-gun, for example – and through some more recent ones: the problems arising from spam. In the latter case, we look both at how this new and vexing phenomenon might be worked into the canon of tort, in particular, trespass to chattel, and also how the law should view acts of self-help taken against spammers.

    • 5.1 Glidden v. Szybiak--"The Dog Ear Puller"

      To what extent should the law protect an owner from minimal interference with his or her property?

      1

      95 N.H. 318; 63 A.2d 233


      ELAINE GLIDDEN, by her mother and next friend PRISCILLA GLIDDEN
      v.
      LOUIS SZYBIAK, LOUISE SZYBIAK AND JANE SZYBIAK.


      No. 3777

      SUPREME COURT OF NEW HAMPSHIRE

      January 5, 1949, Decided
      2

      McLane, Davis, Carleton & Graf, of Manchester and Stanley M. Brown, of Manchester, for defendants.

      3

      FACTS:

      4

      The plaintiff Elaine Glidden, who was four years old at the time of the occurrence here involved, left her home about noon on the day of her injury, to go to a neighborhood store for candy. On the porch of the store Elaine encountered a dog named Toby and engaged in play with him. She eventually climbed on his back and pulled his ears. The dog snapped at her and bit her nose, inflicting wounds for which a recovery is sought. She was treated by two physicians and a successful result obtained. Such scars as were left are "in no way disfiguring but discernible on close view."

      6

      The dog Toby was owned by the defendant Jane Szybiak, an unmarried daughter of the other two defendants, 26 years of age at the time of the trial, living with her parents. The Court found that the defendant Louise Szybiak, although she exercised some care for the dog Toby, "was not the owner or keeper of the dog." The defendant Louis Szybiak, was found to be the head of the family at the time of the injury to Elaine Glidden. "He tolerated and permitted the dog to be in his household and to roam at will throughout the house" and it was further found that "Toby was in possession of the defendant Louis, within the meaning of the statute." To this finding the defendant excepted as being contrary to the evidence and unsupported by the evidence. The defendants also excepted to the denial of their motions for judgment at the close of the evidence.

      7

      The Court also made the following finding: "Elaine is found to have been of such tender years as to be incapable of being guilty of contributory negligence in her conduct toward the dog, Toby. If she was too young to be guilty of negligence, she cannot be found to have been guilty of a trespass or a tort at the time she received her injury." To this finding the defendants duly excepted.

      8

      BRANCH, Chief Justice.

      9

      The statute under which these actions were brought reads as follows: ‘23. Liability of owner. Any person to whom or to whose property damage may be occasioned by a dog not owned or kept by him shall be entitled to recover such damage of the person who owns or keeps the dog, or has it in possession, unless the damage was occasioned to him while he was engaged in the commission of a trespass or other tort.’

      10

      It is the contention of the defendants that the plaintiff Elaine was engaged in the commission of a trespass at the time of her injury and is, therefore, barred from recovery under the statute. The law in regard to a trespass to chattels is thus summarized in the Restatement of the Law of Torts, s. 218: ‘One who without consensual or other privilege to do so, uses or otherwise intentionally intermeddles with a chattel which is in possession of another is liable for a trespass to such person if, (a) the chattel is impaired as to its condition, quality or value, or (b) the possessor is deprived of the use of the chattel for a substantial time, or (c) bodily harm is thereby caused to the possessor or harm is caused to some person or thing in which the possessor has a legally protected interest.’ In comment (f) to clauses (a) and (b), it is pointed out that ‘the interest of a possessor of a chattel in its inviolability, unlike the similar interest of a possessor of land, is not given legal protection by an action for nominal damages for harmless intermeddlings with the chattel. Sufficient legal protection of the possessor's interest in the mere inviolability of his chattel is afforded by his privilege to use reasonable force to protect his possession against even harmless interference.’

      11

      No claim was advanced at the trial that the dog Toby was in any way injured by the conduct of the plaintiff Elaine. Consequently she could not be held liable for a trespass to the dog. Consequently her conduct did not constitute a trespass which will prevent her recovery under the statute here invoked.

      12

      The finding that ‘Toby was in possession of the defendant Louis within the meaning of the statute’ must be set aside. The evidence was uncontradicted that the dog belonged to the defendant Jane, who testified as follows:
      ‘Q. Did your father object to having Toby in the house? A. Yes, he did.
      ‘Q. Could he have thrown Toby out of the house? A. I suppose so.
      ‘Q. Did he do it? A. No, he didn't.
      ‘Q. So he allowed Toby to live there? A. He told me I would be fully responsible for the dog, take care of him.’

      13

      The evidence was also uncontradicted that Jane took care of the dog when she left for work in the morning and that thereafter he was in the care of her mother and that defendant Louis had nothing whatever to do with the care of the dog. Under these circumstances it must be held that the defendant Louis was not the possessor of the dog Toby and therefore as to him the motion for judgment at the close of the evidence should have been granted. Possessor as used in the statute implies the exercise of care, custody or control of the dog by one who though not the owner assumes to act in his stead. Here the actual care, custody and control of the dog was in the owner Jane Szybiak, who was of adult age, and she alone was responsible for the conduct of the animal. The statute furnishes no justification for imposing liability on the defendant Louis.

      14

      Judgment on the verdict against the defendant Jane.
      Judgment for the defendant Louis.
      In the judgment against the defendant Jane all concurred.
      In the judgment for the defendant Louis, DUNCAN, J., concurred in the result; the others concurred.

    • 5.2 Katko v. Briney--"The Spring-Gun Case"

      Should an individual be allowed to use force to protect his or her real property? Should it matter if the property is uninhabited?

      2

      Page 657

      5
      183 N.W.2d 657

      8
      47 A.L.R.3d 624

      11
      Marvin KATKO, Appellee,
      v.
      Edward BRINEY and Bertha L. Briney, Appellants.

      14
      No. 54169.

      17
      Supreme Court of Iowa.

      20
      Feb. 9, 1971.
      22

              Bruce Palmer and H. S. Life, Oskaloosa, for appellants.

      24

              Garold Heslinga, Oskaloosa, for appellee.

      26

              MOORE, Chief Justice.

      28

              The primary issue presented here is whether an owner may protect personal property in an unoccupied boarded-up farm house against trespassers and thieves by a spring gun capable of inflicting death or serious injury.

      30

              We are not here concerned with a man's right to protect his home and members of his family. Defendants' home was several miles from the scene of the incident to which we refer infra.

      32

      Page 658

      34

              Plaintiff's action is for damages resulting from serious injury caused by a shot from a 20-gauge spring shotgun set by defendants in a bedroom of an old farm house which had been uninhabited for several years. Plaintiff and his companion, Marvin McDonough, had broken and entered the house to find and steal old bottles and dated fruit jars which they considered antiques.

      36

              At defendants' request plaintiff's action was tried to a jury consisting of residents of the community where defendants' property was located. The jury returned a verdict for plaintiff and against defendants for $20,000 actual and $10,000 punitive damages.

      38

              After careful consideration of defendants' motions for judgment notwithstanding the verdict and for new trial, the experienced and capable trial judge overruled them and entered judgment on the verdict. Thus we have this appeal by defendants.

      40

              I. In this action our review of the record as made by the parties in the lower court is for the correction of errors at law. We do not review actions at law de novo. Rule 334, Rules of Civil Procedure. Findings of fact by the jury are binding upon this court if supported by substantial evidence. Rule 344(f), par. 1, R.C.P.

      42

              II. Most of the facts are not disputed. In 1957 defendant Bertha L. Briney inherited her parents' farm land in Mahaska and Monroe Counties. Included was an 80-acre tract in southwest Mahaska County where her grandparents and parents had lived. No one occupied the house thereafter. Her husband, Edward, attempted to care for the land. He kept no farm machinery thereon. The outbuildings became dilapidated.

      44

              For about 10 years, 1957 to 1967, there occurred a series of trespassing and housebreaking events with loss of some household items, the breaking of windows and 'messing up of the property in general'. The latest occurred June 8, 1967, prior to the event on July 16, 1967 herein involved.

      46

              Defendants through the years boarded up the windows and doors in an attempt to stop the intrusions. They had posted 'no trespass' signs on the land several years before 1967. The nearest one was 35 feet from the house. On June 11, 1967 defendants set 'a shotgun trap' in the north bedroom. After Mr. Briney cleaned and oiled his 20-gauge shotgun, the power of which he was well aware, defendants took it to the old house where they secured it to an iron bed with the barrel pointed at the bedroom door. It was rigged with wire from the doorknob to the gun's trigger so it would fire when the door was opened. Briney first pointed the gun so an intruder would be hit in the stomach but at Mrs Briney's suggestion it was lowered to hit the legs. He admitted he did so 'because I was mad and tired of being tormented' but 'he did not intend to injure anyone'. He gave to explanation of why he used a loaded shell and set it to hit a person already in the house. Tin was nailed over the bedroom window. The spring gun could not be seen from the outside. No warning of its presence was posted.

      48

              Plaintiff lived with his wife and worked regularly as a gasoline station attendant in Eddyville, seven miles from the old house. He had observed it for several years while hunting in the area and considered it as being abandoned. He knew it had long been uninhabited. In 1967 the area around the house was covered with high weeds. Prior to July 16, 1967 plaintiff and McDonough had been to the premises and found several old bottles and fruit jars which they took and added to their collection of antiques. On the latter date about 9:30 p.m. they made a second trip to the Briney property. They entered the old house by removing a board from a porch window which was without glass. While McDonough was looking around the kitchen area plaintiff went to another part of the house. As he started to open the north bedroom door the shotgun went off striking him in the right leg above the ankle bone. Much of his leg, including part of the tibia, was blown away. Only by McDonough's

      50

      Page 659

      52

              Plaintiff's doctor testified he seriously considered amputation but eventually the healing process was successful. Some weeks after his release from the hospital plaintiff returned to work on crutches. He was required to keep the injured leg in a cast for approximately a year and wear a special brace for another year. He continued to suffer pain during this period.

      54

              There was undenied medical testimony plaintiff had a permanent deformity, a loss of tissue, and a shortening of the leg.

      56

              The record discloses plaintiff to trial time had incurred $710 medical expense, $2056.85 for hospital service, $61.80 for orthopedic service and $750 as loss of earnings. In addition thereto the trial court submitted to the jury the question of damages for pain and suffering and for future disability.

      58

              III. Plaintiff testified he knew he had no right to break and enter the house with intent to steal bottles and fruit jars therefrom. He further testified he had entered a plea of guilty to larceny in the nighttime of property of less than $20 value from a private building. He stated he had been fined $50 and costs and paroled during good behavior from a 60-day jail sentence. Other than minor traffic charges this was plaintiff's first brush with the law. On this civil case appeal it is not our prerogative to review the disposition made of the criminal charge against him.

      60

              IV. The main thrust of defendants' defense in the trial court and on this appeal is that 'the law permits use of a spring gun in a dwelling or warehouse for the purpose of preventing the unlawful entry of a burglar or thief'. They repeated this contention in their exceptions to the trial court's instructions 2, 5 and 6. They took no exception to the trial court's statement of the issues or to other instructions.

      62

              In the statement of issues the trial court stated plaintiff and his companion committed a felony when they broke and entered defendants' house. In instruction 2 the court referred to the early case history of the use of spring guns and stated under the law their use was prohibited except to prevent the commission of felonies of violence and where human life is in danger. The instruction included a statement breaking and entering is not a felony of violence.

      64

              Instruction 5 stated: 'You are hereby instructed that one may use reasonable force in the protection of his property, but such right is subject to the qualification that one may not use such means of force as will take human life or inflict great bodily injury. Such is the rule even though the injured party is a trespasser and is in violation of the law himself.'

      66

              Instruction 6 state: 'An owner of premises is prohibited from willfully or intentionally injuring a trespasser by means of force that either takes life or inflicts great bodily injury; and therefore a person owning a premise is prohibited from setting out 'spring guns' and like dangerous devices which will likely take life or inflict great bodily injury, for the purpose of harming trespassers. The fact that the trespasser may be acting in violation of the law does not change the rule. The only time when such conduct of setting a 'spring gun' or a like dangerous device is justified would be when the trespasser was committing a felony of violence or a felony punishable by death, or where the trespasser was endangering human life by his act.'

      68

              Instruction 7, to which defendants made no objection or exception, stated: 'To entitle the plaintiff to recover for compensatory damages, the burden of proof is upon him to establish by a preponderance of the evidence each and all of the following propositions:

      70

              '1. That defendants erected a shotgun trap in a vacant house on land owned by defendant,

      72

      Page 660

      74

              '2. That the force used by defendants was in excess of that force reasonably necessary and which persons are entitled to use in the protection of their property.

      76

              '3. That plaintiff was injured and damaged and the amount thereof.

      78

              '4. That plaintiff's injuries and damages resulted directly from the discharge of the shotgun trap which was set and used by defendants.'

      80

              The overwhelming weight of authority, both textbook and case law, supports the trial court's statement of the applicable principles of law.

      82

              Prosser on Torts, Third Edition, pages 116--118, states:

      84

              '* * * the law has always placed a higher value upon human safety than upon mere rights in property, it is the accepted rule that there is no privilege to use any force calculated to cause death or serious bodily injury to repel the threat to land or chattels, unless there is also such a threat to the defendant's personal safety as to justify a self-defense. * * * spring guns and other mankilling devices are not justifiable against a mere trespasser, or even a petty thief. They are privileged only against those upon whom the landowner, if he were present in person would be free to inflict injury of the same kind.'

      86

              Restatement of Torts, section 85, page 180, states: 'The value of human life and limb, not only to the individual concerned but also to society, so outweights the interest of a possessor of land in excluding from it those whom he is not willing to admit thereto that a possessor of land has, as is stated in § 79, no privilege to use force intended or likely to cause death or serious harm against another whom the possessor sees about to enter his premises or meddle with his chattel, unless the intrusion threatens death or serious bodily harm to the occupiers or users of the premises. * * * A possessor of land cannot do indirectly and by a mechanical device that which, were he present, he could not do immediately and in person. Therefore, he cannot gain a privilege to install, for the purpose of protecting his land from intrusions harmless to the lives and limbs of the occupiers or users of it, a mechanical device whose only purpose is to inflict death or serious harm upon such as may intrude, by giving notice of his intention to inflict, by mechanical means and indirectly, harm which he could not, even after request, inflict directly were he present.'

      88

              In Volume 2, Harper and James, The Law of Torts, section 27.3, pages 1440, 1441, this is found: 'The possessor of land may not arrange his premises intentionally so as to cause death or serious bodily harm to a trespasser. The possessor may of course take some steps to repel a trespass. If he is present he may use force to do so, buy only that amount which is reasonably necessary to effect the repulse. Moreover if the trespass threatens harm to property only--even a theft of property--the possessor would not be privileged to use deadly force, he may not arrange his premises so that such force will be inflicted by mechanical means. If he does, he will be liable even to a thief who is injured by such device.'

      90

              Similar statements are found in 38 Am.Jur., Negligence, section 114, pages 776, 777, and 65 C.J.S. Negligence § 62(23), pages 678,679; Anno. 44 A.L.R.2d 383, entitled 'Trap to protect property'.

      92

              In Hooker v. Miller, 37 Iowa 613, we held defendant vineyard owner liable for damages resulting from a spring gun shot although plaintiff was a trespasser and there to steal grapes. At pages 614, 615, this statement is made: 'This court has held that a mere trespass against property other than a dwelling is not a sufficient justification to authorize the use of a deadly

      94

      Page 661

      96

              The facts in Allison v. Fiscus, 156 Ohio 120, 110 N.E.2d 237, 44 A.L.R.2d 369, decided in 1951, are very similar to the case at bar. There plaintiff's right to damages was recognized for injuries received when he feloniously broke a door latch and started to enter defendant's warehouse with intent to steal. As he entered a trap of two sticks of dynamite buried under the doorway by defendant owner was set off and plaintiff seriously injured. The court held the question whether a particular trap was justified as a use of reasonable and necessary force against a trespasser engaged in the commission of a felony should have been submitted to the jury. The Ohio Supreme Court recognized plaintiff's right to recover punitive or exemplary damages in addition to compensatory damages.

      98

              In Starkey v. Dameron, 96 Colo. 459, 45 P.2d 172, plaintiff was allowed to recover compensatory and punitive damages for injuries received from a spring gun which defendant filling station operator had concealed in an automatic gasoline pump as protection against thieves.

      100

              In Wilder v. Gardner, 39 Ga.App. 608, 147 S.E. 911, judgment for plaintiff for injuries received from a spring gun which defendant had set, the court said: 'A person in control of premises may be responsible even to a trespasser for injuries caused by pitfalls, mantraps, or other like contrivances so dangerous in character as to imply a disregard of consequences or a willingness to inflict injury.'

      102

              In Phelps v. Hamlett, Tex.Civ.App., 207 S.W. 425, defendant rigged a bomb inside his outdoor theater so that if anyone came through the door the bomb would explode. The court reversed plaintiff's recovery because of an incorrect instruction but at page 426 said: 'While the law authorizes an owner to protect his property by such reasonable means as he may find to be necessary, yet considerations of humanity preclude him from setting out, even on his own property, traps and devices dangerous to the life and limb of those whose appearance and presence may be reasonably anticipated, even though they may be trespassers.'

      104

              In United Zinc & Chemical Co. v. Britt, 258 U.S. 268, 275, 42 S.Ct. 299, 66 L.Ed. 615, 617, the court states: 'The liability for spring guns and mantraps arises from the fact that he defendant has * * * expected the trespasser and prepared an injury that is no more more justified than if he had held the gun and fired it.'

      106

              In addition to civil liability many jurisdictions hold a land owner criminally liable for serious injuries or homicide caused by spring guns or other set devices. See State v. Childers, 133 Ohio 508, 14 N.E.2d 767 (melon thief shot by spring gun); Pierce v. Commonwealth, 135 Va. 635, 115 S.E. 686 (policeman killed by spring gun when he opened unlocked front door of defendant's shoe repair shop); State v. Marfaudille, 48 Wash. 117, 92 P. 939 (murder conviction for death from spring gun set in a trunk); State v. Beckham, 306 Mo. 566, 267 S.W. 817 (boy killed by spring gun attached to window of defendant's chili stand); State v. Green, 118 S.C. 279, 110 S.E. 145, 19 A.L.R. 1431 (intruder shot by spring gun when he broke and entered vacant house. Manslaughter conviction of owner-affirmed); State v. Barr, 11 Wash. 481, 39 P. 1080 (murder conviction affirmed for death of an intruder into a boarded up cabin in which owner had set a spring gun).

      108

              In Wisconsin, Oregon and England the use of spring guns and similar devices is specifically made unlawful by statute. 44 A.L.R., section 3, pages 386, 388.

      110

      Page 662

      112

              The legal principles stated by the trial court in instructions 2, 5 and 6 are well established and supported by the authorities cited and quoted supra. There is no merit in defendants' objections and exceptions thereto. Defendants' various motions based on the same reasons stated in exceptions to instructions were properly overruled.

      114

              V. Plaintiff's claim and the jury's allowance of punitive damages, under the trial court's instructions relating thereto, were not at any time or in any manner challenged by defendants in the trial court as not allowable. We therefore are not presented with the problem of whether the $10,000 aware should be allowed to stand.

      116

              We express no opinion as to whether punitive damages are allowable in this type of case. If defendants' attorneys wanted that issue decided it was their duty to raise it in the trial court.

      118

              The rule is well established that we will not consider a contention not raised in the trial court. In other words we are a court of review and will not consider a contention raised for the first time in this court. Ke-Wash Company v. Stauffer Chemical Company, Iowa, 177 N.W.2d 5, 9; In re Adoption of Moriarty, 260 Iowa 1279, 1288, 152 N.W.2d 218, 223; Verschoor v. Miller, 259 Iowa 170, 176, 143 N.W.2d 385, 389; Mundy v. Olds, 254 Iowa 1095, 1100, 120 N.W.2d 469, 472; Bryan v. Iowa State Highway Commission, 251 Iowa 1093, 1096, 104 N.W.2d 562, 563, and citations.

      120

              In our most recent reference to the rule we say in Cole v. City of Osceola, Iowa, 179 N.W.2d 524, 527: 'Of course, questions not presented to and not passed upon by the trial court cannot be raised or reviewed on appeal.'

      122

              Under our law punitive damages are not allowed as a matter of right. Sebastian v. Wood, 246 Iowa 94, 100, 101, 66 N.W.2d 841, 844. When malice is shown or when a defendant acted with wanton and reckless disregard of the rights of others, punitive damages may be allowed as punishment to the defendant and as a deterrent to others. Although not meant to compensate a plaintiff, the result is to increase his recovery. He is the fortuitous beneficiary of such an award simply because there is no one else to receive it.

      124

              The jury's findings of fact including a finding defendants acted with malice and with wanton and reckless disregard, as required for an allowance of punitive or exemplary damages, are supported by substantial evidence. We are bound thereby.

      126

              This opinion is not to be taken or construed as authority that the allowance of punitive damages is or is not proper under circumstances such as exist here. We hold only that question of law not having been properly raised cannot in this case be resolved.

      128

              Study and careful consideration of defendants' contentions on appeal reveal no reversible error.

      130

              Affirmed.

      132

              All Justices concur except LARSON, J., who dissents.

      134

              LARSON, Justice.

      136

              I respectfully dissent, first, because the majority wrongfully assumes that by installing a spring gun in the bedroom of their unoccupied house the defendants intended to shoot any intruder who attempted to enter the room. Under the record presented here, that was a fact question. Unless it is held that there property owners are liable for any injury to a intruder from such a device regardless of the intent with which it is installed, liability under these pleadings must rest upon two definite issues of fact, i.e., did the defendants intend to shoot the invader, and if so, did they employ unnecessary and unreasonable force against him?

      138

              It is my feeling that the majority oversimplifies the impact of this case on the law, not only in this but other jurisdictions,

      140

      Page 663

      142

              There being no statutory provisions governing the right of an owner to defend his property by the use of a spring gun or other like device, or of a criminal invader to recover punitive damages when injured by such an instrumentality while breaking into the building of another, our interest and attention are directed to what should be the court determination of public policy in these matters. On both issues we are faced with a case of first impression. We should accept the task and clearly establish the law in this jurisdiction hereafter. I would hold there is no absolute liability for injury to a criminal intruder by setting up such a device on his property, and unless done with an intent to kill or seriously injure the intruder, I would absolve the owner from liability other than for negligence. I would also hold the court had no jurisdiction to allow punitive damages when the intruder was engaged in a serious criminal offense such as breaking and entering with intent to steal.

      144

              It appears to me that the learned trial court was and the majority is now confused as to the basis of liability under the circumstances revealed. Certainly, the trial court's instructions did nothing to clarify the law in this jurisdiction for the jury. Timely objections to Instructions Nos. 2, 5 and 6 were made by the defendants, and thereafter the court should have been aware of the questions of liability left unresolved, i.e., whether in this jurisdiction we by judicial declaration bar the use in an unoccupied building of spring guns or other devices capable of inflicting serious injury or death on an intruder regardless of the intent with which they are installed, or whether such an intent is a vital element which must be proven in order to establish liability for an injury inflicted upon a criminal invader.

      146

              Although the court told the jury the plaintiff had the burden to prove 'That the force used by defendants was in excess of that force reasonably necessary and which persons are entitled to use in the protection of their property', it utterly failed to tell the jury it could find the installation was not made with the intent or purpose of striking or injuring the plaintiff. There was considerable evidence to that effect. As I shall point out, both defendants stated the installation was made for the purpose of scaring or frightening away any intruder, not to seriously injure him. It may be that the evidence would support a finding of an intent to injure the intruder, but obviously that important issue was never adequately or clearly submitted to the jury.

      148

              Unless, then, we hold for the first time that liability for death or injury in such cases is absolute, the matter should be remanded for a jury determination of defendant's intent in installing the device under instructions usually given to a jury on the issue of intent.

      150

              I personally have no objection to this court's determination of the public policy of this state in such a case to ban the use of such devices in All instances where there is no intruder threat to human life or safety, but I do say we have never done so except in the case of a mere trespasser in a vineyard. Hooker v. Miller, 37 Iowa 613 (1873). To that extent, then, this is a case of first impression, and in any opinion we should make the law in this jurisdiction crystal clear. Although the legislature could pronounce this policy, as it has in some states, since we have entered this area of the law by the Hooker decision, I believe it proper for us to declare the applicable law in cases such as this for the guidance of the bench and bar hereafter. The majority opinion utterly fails in this regard. It fails to recognize the problem where such a device is installed in a building housing valuable property to ward off criminal intruders, and to clearly place and burden necessary to establish liability.

      152

              My second reason for this dissent is the allowance of an award of punitive damages herein. Plaintiff claimed a remedy which

      154

      Page 664

      156

              I do not wish to criticize, but believe the factual statement of the majority fails to give a true perspective of the relative facts and issues to be considered.

      158

              Plaintiff's petition at law asking damages alleged willful and malicious setting of a trap or device for the purpose of killing or inflicting great bodily harm upon any trespasser on defendants' property. We are, therefore, factually concerned with how such force may be properly applied by the property owner and whether his intent is relevant to liability. Negligent installation of a dangerous device to frighten and ward off an intruder or thief is not alleged, so unless the proof submitted was sufficient to establish a willful setting of the trap with a purpose of killing or seriously injuring the intruder, no recovery could be had. If the evidence submitted was such that a jury could find defendants had willfully set the spring gun with a purpose to seriously injure the plaintiff intruder, unless they were privileged under the law to set the gun under these circumstances, liability for the injury would follow.

      160

              From the record we learn that plaintiff and a companion made a second trip to a furnished but uninhabited house on defendants' farmland in Mahaska County on the night of July 16, 1967. They tore a plank from a porch window, entered the house with an intent to steal articles therein, and in search of desired articles plaintiff came to a closed bedroom door where he removed a chair braced under the door knob and pulled the door toward him. This action triggered a single shot 20-gauge shotgun which defendants had wired to the bottom of a bed. The blast went through the door and struck plaintiff two or three inches above the right ankle.

      162

              The Mahaska County Grand Jury issued a true bill charging plaintiff with breaking and entering in the nighttime, but the county attorney accepted a plea of guilty to the lesser offense of larceny in the nighttime of property of a value of less than $20 and did not press the greater charge.

      164

              At the trial of this case Mr. Briney, one of the defendants, testified that the house where plaintiff was injured had been the home of Mrs. Briney's parents. He said the furniture and other possessions left there were of considerable value and they had tried to preserve them and enjoy them for frequent visits by Mrs. Briney. It appeared this unoccupied house had been broken into repeatedly during the past ten-years and, as a result, Mr. Briney said 'things were pretty well torn up, a lot of things taken.' To prevent these intrusions the Brineys nailed the doors and some windows shut and boarded up others. Prior to this time Mr. Briney testified he had locked the doors, posted seven no trespassing signs on the premises, and complained to the sheriffs of two counties on numerous occasions. Mr. Briney further testified that when all these efforts were futile and the vandalism continued, he placed a 20-guage shotgun in a bedroom and wired it so that it would shoot downward and toward the door if anyone opened it. He said he first aimed it straight at the door but later, at his wife's suggestion, reconsidered the aim and pointed the gun down in a way he thought would only scare

      166

      Page 665

      168

              Plaintiff testified he knew the house was unoccupied and admitted breaking into it in the nighttime without lawful reason or excuse. He claimed he and his companion were seeking old bottles and dated fruit jars. He also admitted breaking in on one prior occasion and stated the reason for the return visit was that 'we decided we would go out to this place again and see if there was something we missed while we was out there the first time.' An old organ fascinated plaintiff. Arriving this second time, they found that the window by which they had entered before was now a 'solid mass of boards' and walked around the house until they found the porch window which offered less resistance. Plaintiff said they crawled through this window. While searching the house he came to the bedroom door and pulled it open, thus triggering the gun that delivered a charge which struck him in the leg.

      170

              Plaintiff's doctor testified that he treated the shotgun wound on the night it was sustained and for some period thereafter. The healing process was successful and plaintiff was released after 40 days in the hospital. There was medical testimony that plaintiff had a permanent deformity, a loss of tissue, and a shortening of the leg.

      172

              That plaintiff suffered a grievous wound is not denied, and that it constituted a serious bodily injury cannot be contradicted.

      174

              As previously indicated, this appeal presents two vital questions which are as novel as they are difficult. They are, (1) is the owner of a building in which are kept household furniture, appliances, and valuables, but not occupied by a person or persons, liable in damages to an intruder who in the nighttime broke into and entered the building with the intent to steal and was shot and seriously injured by a spring gun allegedly set by the owner to frighten intruders from his property, and (2) if he is liable for compensatory damages, is this a proper case for the allowance of exemplary or punitive damages?

      176

              The trial court overruled all objections to the instructions and denied defendants' motion for a new trial. Thus, the first question to be resolved is the status of the law in this jurisdiction as to the means of force a property owner is privileged to use to repel (1) a mere trespasser, (2) a criminal invader, thief or burglar, where he presents no threat to human life or safety, and (3) an intruder or criminal breaking and entering a dwelling which poses a threat to human life and safety. Overlooked by the majority is the vital problem relating to the relevancy and importance of the owner's intent in placing the device.

      178

              I have been unable to find a case exactly like the case at bar, although there have been many cases which consider liability to a mere trespasser for injuries incurred by a spring gun or other dangerous instruments set to protect against intrusion and theft. True, some of these cases seem to turn on the negligence of the party setting the trap and an absence of adequate warning thereof, but most of them involve an alleged intentional tort. It is also true some hold as a matter of public policy there is liability for any injury following the setting of a device which is intended to kill or inflict great bodily injury on one coming on the owner's property without permission, unless the invader poses a threat to human life, and this is so even though there is no statutory prohibition against the setting of spring guns in the jurisdiction.

      180

              Since our decision in Hooker v. Miller, supra, we have recognized in this state the doctrine that the owner of a primise is liable in damages to a mere trespasser coming upon his property for any injury occasioned by the unsafe condition of the property which the owner has intentionally permitted to exist, such as installed spring guns, unless adequate warning is given thereof. In

      182

      Page 666

      184

              However, left unsettled by this and other court pronouncements is the means which may be used to repel, prevent, or apprehend a trespasser engaged in a more serious criminal offense. True, there is a line of cases which seem to apply the same rule to all criminal trespasses except those involving arson, rape, assault, or other acts of violence against persons residing on the property invaded. State v. Vance, 17 Iowa 138 (1864); State v. Plumlee, 177 La. 687, 149 So. 425 (1933); Pierce v. Commonwealth, 135 Va. 635, 115 S.E. 686 (Virginia, 1923); Simpson v. State, 59 Ala. 1, 31 Am.Rep. 1 (1877); State v. Barr, 11 Wash. 481, 39 P. 1080 (1895); Starkey v. Dameron, 96 Colo. 459, 21 P.2d 1112 (1933); State v. Beckham, 306 Mo. 566, 267 S.W. 817 (1924); Bird v. Holbrook, 4 Bingham's Reports 628 (England, 1828). Also see annotation, 44 A.L.R.2d 391, § 5, and citations. There are others which at least infer that any serious law violation by the trespasser might permit the reasonable use of dangerous instrumentalities to repel the intruder and prevent loss or damage to one's valuable property. Scheuermann v. Scharfenberg, 163 Ala. 337, 50 So. 335; Marquis v. Benfer, Tex.Civ.App., 298 S.W.2d 601 (Texas 1956); Grant v. Hass, 31 Tex.Civ.App. 688, 75 S.W. 342 (1903); Gray v. Combs, 7 J.J. Marshall 478 (Ky., 1832), 23 Am.Dec. 431; Ilott v. Wilkes, 3 B. & A. 304 (1820 K.B.).

      186

              Also see the following articles on this subject: 68 Yale Law Journal 633, Duties to Trespassers: A Comparative Survey and Revaluation; 35 Yale Law Journal 525, The Privilege to Protect Property by Dangerous Barriers and Mechanical Devices; annotation, 44 A.L.R.2d 383, Use of Set Gun, Trap, or Similar Device on Defendant's Own Property.

      188

              Most of these discussions center around what should be public policy regarding a property owner's right to use a dangerous weapon or instrumentality to protect his premises from intruders or trespassers, and his duty to protect the trespasser from serious injury while upon his premises.

      190

              Some states, including Wisconsin, have statutes which announce the jurisdiction's public policy. Often they prohibit the use of spring guns or such devices to protect real and personal property, and of course in those instances a property owner, regardless of his intent or purpose, has no right to make use of them and is liable to anyone injured thereby. Since there has been no such statutory prohibition or direct judicial pronouncement to that effect prior to this time in this state, it could not be said as a matter of law that the mere placing of a spring gun in a building on one's premises is unlawful. Much depends upon its placement and purpose. Whether an owner exceeds his privilege to reasonably defend his property by such an installation, and whether liability is incurred in a given case, should therefore depend upon the circumstances revealed, the intent of the property owner, and his care in setting the device. In any event, I question whether it should be determined solely by the results of his act or its effect upon the intruder.

      192

              It appears there are cases and some authority which would relieve one setting a spring gun on his premises of any liability if adequate warning had been given an intruder and he ignores the warning. In all of these cases there is a question as to

      194

      Page 667

      196

              If, after proper instructions, the finder of fact determines that the gun was set with an intent and purpose to kill or inflict great bodily injury on an intruder, then and only then may it be said liability is established unless the property so protected is shown to be an occupied dwelling house. Of course, under this concept, if the finder of fact determines the gun set in an unoccupied house was intended to do no more than to frighten the intruder or sting him a bit, no liability would be incurred under such pleadings as are now presented. If such a concept of the law were adopted in Iowa, we would have here a question for the fact-finder or jury as to whether the gun was willfully and intentionally set so as to seriously injure the thief or merely scare him away.

      198

              I feel the better rule is that an owner of buildings housing valuable property may employ the use of spring guns or other devices intended to repeal but not seriously injure an intruder who enters his secured premises with or without a criminal intent, but I do not advocate its general use, for there may also be liability for negligent installation of such a device. What I mean to say is that under such circumstances as we have here the issue as to whether the set was with an intent to seriously injure or kill an intruder is a question of fact that should be left to the jury under proper instructions, the that the mere setting of such a device with a resultant serious injury should not as a matter of law establish liability.

      200

              In the case of a mere trespass able authorities have reasoned that absolute liability may rightfully be fixed on the landowner for injuries to the trespasser because very little damage could be inflicted upon the property owner and the danger is great that a child or other innocent trespasser might be seriously injured by the device. In such matters they say no privilege to set up the device should be recognized by the courts regardless of the owner's intent. I agree.

      202

              On the other hand, where the intruder may pose a danger to the inhabitants of a dwelling, the privilege of using such a device to repel has been recognized by most authorities, and the mere setting thereof in the dwelling has not been held to create liability for an injury as a matter of law. In such cases intent and the reasonableness of the force would seem relevant to liability.

      204

              Although I am aware of the often-repeated statement that personal rights are more important than property rights, where the owner has stored his valuables representing his life's accumulations, his livelihood business, his tools and implements, and his treasured antiques as appears in the case at bar, and where the evidence is sufficient to sustain a finding that the installation was intended only as a warning to ward off thieves and criminals, I can see no compelling reason why the use of such a device alone would create liability as a matter of law.

      206

              For cases considering the devices a property owner is or is not privileged to use to repel a mere trespasser, see Hooker v. Miller, supra, 37 Iowa 613 (trap gun set in orchard to repel); State v. Vance, supra, 17 Iowa 138 (1864); Phelps v. Hamlett, Tex.Civ.App., 207 S.W. 425 (1918) (bomb set in open air theater); State v. Plumlee, supra, 177 La. 687, 149 So. 425 (1933) (trap gun set in open barn); Starkey v. Dameron, supra, 96 Colo. 459, 21 P.2d 1112 (1933) (spring gun in outdoor automatic gas pump); State v. Childers, 133 Ohio St. 508, 14 N.E.2d 767 (1938) (trap gun in melon patch); Weis v. Allen, 147 Or. 670, 35 P.2d 478 (1934) (trap gun in junkyard); Johnson v. Patterson, 14 Conn. 1 (1840)

      208

      Page 668

      210

              For cases apparently holding dangerous devices may be used to ward off and prevent a trespasser from breaking and entering into an inhabited dwelling, see State v. Vance, supra; Grant v. Hass, supra; Scheuermann v. Scharfenberg, supra; Simpson v. State, supra; United States v. Gilliam, 1 Hayw. & H. 109, 25 Fed.Cas. 1319, p. 1320, No. 15,205 a (D.C. 1882); State v. Childers, supra; Gramlich v. Wurst, 86 Pa. 74, 80 (1878).

      212

              Also, for cases considering the devices a property owner is privileged to use to repel an invader where there is no threat to human life or safety, see Allison v. Fiscus, 156 Ohio St. 120, 100 N.E.2d 237, 44 A.L.R.2d 369; State v. Barr, 11 Wash. 481, 39 P. 1080 (1895); State v. Childers, supra; Weis v. Allen, supra; Pierce v. Commonwealth, supra; Johnson v. Patterson, supra; Marquis v. Benfer, supra.

      214

              In Allison v. Fiscus, supra, at page 241 of 100 N.E.2d, it is said: 'Assuredly, * * * the court had no right to hold as a matter of law that defendant was liable to plaintiff, as the Defendant's good faith in using the force which he did to protect his building and the good faith of his belief as to the nature of the force he was using were questions for the jury to determine under proper instructions.' (Emphasis supplied.)

      216

              In State v. Barr, supra, at page 1081 of 39 P., the court said: '* * * whether or not what was done in a particular case was justified under the law must be a question of fact, or mixed law and fact, and not a pure question of law.'

      218

              In State v. Childers, supra, it is said at page 768 of 14 N.E.2d: 'Of course the act in question must be done maliciously * * * and That fact must be proved and found by the jury to exist.' (Emphasis supplied.)

      220

              Also see State v. Metcalfe, 203 Iowa 155, 212 N.W. 382, where this court discussed the force that a property owner may use to oppose an unlawful effort to carry away his goods, and held the essential issue in such matters which must be explained to the jury is not the nature of the weapon employed but whether the defendant employed only that degree of force to accomplish such purpose which a reasonable person would deem reasonably necessary under the circumstances as they appeared in good faith to the defendant.

      222

              Like the Ohio Supreme Court in Allison v. Fiscus, supra, I believe that the basis of liability, if any, in such a case should be either the intentional, reckless, or grossly negligent conduct of the owner in setting the device.

      224

              If this is not a desirable expression of policy in this jurisdiction, I suggest the body selected and best fitted to establish a different public policy would be the State Legislature.

      226

              The next question presented is, which view of the law set out above did the trial court take, the view that the mere setting of a spring gun or like device in defendants' building created liability for the resulting injury, or the view that there must be a setting of the device with an intent to shoot, kill, or seriously injure one engaged in breaking and entering this house? Appellants argue this was not made clear in the court's instructions to the jury and, being material, is error. I agree.

      228

              They contend Instructions Nos. 2, 5 and 6, to which proper and timely exceptions were taken, are improper, that they were so inadequate and confusing as to constitute reversible error and required the trial court to grant their motion for a new trial.

      230

              Instruction No. 5 provides:

      232

              'You are hereby instructed that one may use reasonable force in the protection of his property, but such right is subject to the qualification that one may not Use such means of force as will take human life

      234

      Page 669

      236

              Instruction No. 6 provides:

      238

              'An owner of premises is prohibited from willfully or intentionally injuring a trespasser by means of force that either takes life or inflicts great bodily injury; and therefore a person owning a premise is prohibited from setting out 'spring guns' and like dangerous devices which will likely take life or inflict great bodily injury, For the purpose of harming trespassers. The fact that the trespasser may be acting in violation of the law does not change in the rule. The only time when such conduct of setting a 'spring gun' or a like dangerous device is justified would be when the trespasser was committing a felony of violence or a felony punishable by death, or where the trespasser was endangering human life by his act.' (Emphasis supplied.)

      240

              Specific objections were made to Instruction No. 2, inter alia, to the statement that in this jurisdiction the use of force which may take life or inflict serious bodily injury might be used was restricted to occupied dwellings or where specific statutes permitted its use; to the reference to an Iowa case wherein the subject related to a Simple trespass in a vineyard where no breaking and entry of a building was involved, without pointing out the difference as to permissible force permitted to repel one entering the owner's buildings with intent to ravish and steal valuable personal property; and to the error resulting when the court wrongfully directed the jury to find defendants' acts were illegal by stating 'that in so doing he violated the law and became liable for injuries sustained by the plaintiff.'

      242

              In other words, defendants contended that this instruction failed to tell the jury the extent of defendants' rights to defend against burglary in buildings other than their dwelling, inferring they have no right to employ a device which is dangerous to life and limb, regardless of its intended purpose only to ward off or scare the intruder.

      244

              Defendants also specifically objected to Instruction No. 5 because it also limited the right or privilege of one to use dangerous devices in any way to protect his property, and made it applicable to cases where the invader was in violation of the law, without classifying his offense.

      246

              Instruction No. 6 was specifically objected to as not being a proper statement of the law, as being inadequate, confusing, and misleading to the jury in regard to the vital issues in this case, because it would not be possible for a jury to understand the court when it told the jurors an owner of premises is prohibited from willfully or intentionally injuring a trespasser by means of force that either takes life or inflicts great bodily injury, and then told them a person owning premises is prohibited from setting out spring guns and like dangerous devices which will 'likely' take life or inflict great bodily injury, For the purpose of harming trespassers.

      248

              Appellants argue from these instructions the jury could conclude it must find any setting of a spring gun or such other device to protect his property from a bulglar or other criminal invader made the owner Absolutely liable for injuries suffered by the intruder, unless the building being so protected was a dwelling, regardless of the owner's intent and purpose in setting the device in his building. On the other hand, in Instruction No. 6 the court refers to such a Setting with the intent and purpose of killing or seriously injuring the intruder in order to make the owner liable for damages.

      250

              I too find these instructions are confusing. If the court was telling the jury, as appellants contend, that an owner of a premise may not set a spring gun to protect his property unless the trespasser's act amounts to a felony of violence and

      252

      Page 670

      254

              I would, therefore, conclude there is merit in appellants' contention that the law was not made clear to the jury as to whether the act of placing a spring gun on this premise was prohibited by law, or whether the act of placing such a device requires a finding of intention to shoot the intruder or cause him great bodily injury to establish liability. I cannot tell whether the jury found liability on the mere act of placing the gun as Mr. Briney did in this house or on the fact that he did so with the intent to seriously harm a trespasser.

      256

              In the case at bar, as I have pointed out, there is a sharp conflict in the evidence. The physical facts and certain admissions as to how the gun was aimed would tend to support a finding of intent to injure, while the direct testimony of both defendants was that the gun was placed so it would 'hit the floor eventually' and that it was set 'low so it couldn't kill anybody.' Mr. Briney testified, 'My purpose in setting up the gun was not to injure somebody. I thought more or less that the gun would be at a distance of where anyone would grab the door, it would scare them', and in setting the angle of the gun to hit the lower part of the door, he said, 'I didn't think it would go through quite that hard.'

      258

              If the law in this jurisdiction permits, which I think it does, an explanation of the setting of a spring gun to repel invaders of certain private property, then the intent with which the set is made is a vital element in the liability issue.

      260

              In view of the failure to distinguish and clearly give the jury the basis upon which it should determine that liability issue, I would reverse and remand the entire case for a new trial.

      262

              As indicated, under these circumstances the trial court should not have submitted the punitive damage issue to the jury in this case. By Instruction No. 14 the learned trial judge wrongfully instructed the jury that the law of Iowa allows a jury in such a case to award exemplary damages if it is found that the act complained of is wanton and reckless or where the defendants are guilty of malice. True, this instruction was in accordance with certain past pronouncements of this court and no objection was taken to the substance of the instruction, but defendants have always contended under these circumstances the court should not have submitted the question of exemplary damages to the jury. We have never extended the exemplary damage law to cover such cases and I maintain we should not do so now, directly or indirectly. Without such a pronouncement to that extent, or some legislation extending that right to a person engaged in a serious criminal offense at the time of his injury, I believe the trial court possessed no jurisdiction to permit the jury to pass on such a claim, even though no objections thereto were made by the defendants.

      264

              Although this subject has been considered and discussed in several Iowa cases, including Sebastian v. Wood, 246 Iowa 94, 66 N.W.2d 841, and citations, granting exemplary damages for injury due to alleged reckless driving, and Amos v. Prom, 115 F.Supp. 127, relating to alleged mental suffering and humiliation when denied admission to a public dance hall, none seem to consider whether punitive damages are permitted where the injured party was, as here, engaged in a criminal act such as breaking and entering, burglary, or other serious offense. Also see Morgan v. Muench, 181 Iowa 719, 156 N.W. 819, and Stricklen v. Pearson Construction Co., 185 Iowa 95, 169 N.W. 628, and citations in each.

      266

      Page 671

      268

              Although I have found no authority to assist me in my view, I am convinced it is correct in principle and should be adopted in this jurisdiction. In so doing, I adhere to the rule recognized in Amos v. Prom, supra, at 137, et seq., where it is stated: '* * * the principle that intentional wrongful action in disregard for the rights of others amounts to conduct to which the law will attach a penalty and deterrent by way of exemplary damages.' However, I would not extend this privilege to a case where the injured party's conduct itself was criminal and extremely violative of good public behavior.

      270

              From a general review of the subject of exemplary or punitive damages beginning with Wilkes v. Wood (1763), Lofft 1, 98 English Rep. 489, 498, which stated such 'Damages are designed not only as a satisfaction to the injured person, but likewise as a punishment to the guilty, to deter from any such proceeding for the future, * * *', I find that both in England and the United States the purpose of this law was to restrain arbitrary and out-rageous use of power. See 70 Harvard L.Rev. 517, 519 (1957), Exemplary Damages in the Law of Torts.

      272

              In Hawk v. Ridgway, 33 Ill, 473, 475 (1864), the Illinois court said, 'Where the wrong is wanton, or it is willful, the jury are authorized to give an amount of damages beyond the actual injury sustained, as a punishment, and to preserve the public tranquillity.'

      274

              Some courts rationalize punitive damages on the basis that they provide an outlet for the injured party's desire for revenge and thereby help keep the peace. Some others rationalize it as a punishment to defendant and to deter him and others from further antisocial conduct. It has also been said punitive damages are ordinarily a means of increasing the severity of the admonition inherent in the compensatory award. See 44 Harvard L.Rev. 1173 (1931).

      276

              A further study of this law indicates punitive damages have a direct relation to the criminal law. Historically, it was undoubtedly one of the functions of tort law To deter wrongful behavior. However, in modern times its priority has become that of compensating the victm of the injury. The business of punishing wrongdoers has increasingly become the exclusive purview of the criminal law. See Pollock and Maitland, History of English Law, Vol. II, 2d Ed. (1898), § 1, pp. 449--462.

      278

              The award of punitive damages in modern tort law gives rise to considerable anomalies. Such damages, of course, go to the private purse of the individual plaintiff and may be classified a windfall as to him in excess of his actual losses due entirely to a social judgment about defendant's conduct.

      280

              In properly applying this law Professor McCormick, in his treatise on damages found on pages 276 and 277 in McCormick on Damages (1935), said, 'Perhaps the principal advantage is that it does tend to bring to punishment a type of cases of oppressive conduct, such as slanders, assaults, minor oppressions, and cruelties, which are theoretically criminally punishable, but which in actual practice go unnoticed by prosecutors occupied with more serious crimes. * * * The self-interest of the plaintiff leads to the actual prosecution of the claim for punitive damages, where the same motive would often lead him to refrain from the trouble incident to appearing against the wrongdoer in criminal proceedings.'

      282

              So understood, punitive damages are an adjunct to the criminal law, yet one over which the criminal law has no control, and in the United Kingdom, the land of its birth, punitive damages are close to entinct. In Rookes v. Barnard, Appeal Cases (House of Lords, 1964) 1129, at 1221 et seq., the English court of last resort confined the award of punitive damages to a very narrow range of situations. It ruled in an intentional tort case that exemplary

      284

      Page 672

      286

              In the case at bar the plaintiff was guilty of serious criminal conduct, which event gave rise to his claim against defendants. Even so, he may be eligible for an award of compensatory damages which so far as the law is concerned redresses him and places him in the position he was prior to sustaining the injury. The windfall he would receive in the form of punitive damages is bothersome to the principle of damages, because it is a response to the conduct of the defendants rather than any reaction to the loss suffered by plaintiff or any measurement of his worthiness for the award.

      288

              When such a windfall comes to a criminal as a result of his indulgence in serious criminal conduct, the result is intolerable and indeed shocks the conscience. If we find the law upholds such a result, the criminal would be permitted by operation of law to profit from his own crime.

      290

              Furthermore, if our civil courts are to sustain such a result, it would in principle interfere with the purposes and policies of the criminal law. This would certainly be ironic since punitive damages have been thought to assist and promote those purposes, at least so far as the conduct of the defendant is concerned.

      292

              We cannot in good conscience ignore the conduct of the plaintiff. He does not come into court with clean hands, and attempts to make a claim to punitive damages in part on his own criminal conduct. In such circumstances, to enrich him would be unjust, and compensatory damages in such a case itself would be a sufficient deterrent to the defendant or others who might intend to set such a device.

      294

              The criminal law can take whatever action is appropriate in such cases, but the civil law should not compound the breach of proper social conduct by rewarding the plaintiff for his crime. I conclude one engaged in a criminal activity is an unworthy object of largesse bestowed by punitive damages and hold the law does not support such a claim to enrichment in this case.

      296

              The admonitory function of the tort law is adequately served where the compensatory damages claimed are high and the granted award itself may act as a severe punishment and a deterrence. In such a case as we have here there is no need to hold out the prospect of punitive damages as an incentive to sue and rectify a minor physical damage such as a redress for lost dignity. Certainly this is not a case where defendants might profit in excess of the amount of reparation they may have to pay.

      298

              In a case of this kind there is no overwhelming social purpose to be achieved by punishing defendants beyond the compensatory sum claimed for damages.

      300

              Being convinced that there was reversible error in the court's instructions, that the issue of intent in placing the spring gun was not clearly presented to the jury, and that the issue as to punitive damages should not have been presented to the jury, I would reverse and remand the matter for a new trial.

      302

              The majority seem to ignore the evident issue of punitive policy involved herein and uphold the punitive damage award on a mere technical rule of civil procedure.

    • 5.3 CompuServe v. CyberPromotions--"The Damaging Spam Case"

      Should tort law recognize spamming as trespass against an individual's property? If so, should there be some limits on who may sue spam senders?

      3
      962 F.Supp. 1015

      6
      COMPUSERVE INCORPORATED, Plaintiff,
      v.
      CYBER PROMOTIONS, INC. and Sanford Wallace, Defendants.

      9
      No. C2-96-1070.

      12
      United States District Court, S.D. Ohio, Eastern Division.

      15
      February 3, 1997.
      17

      Page 1016

      19

      COPYRIGHT MATERIAL OMITTED

      21

      Page 1017

      23

              Robert W. Hamilton, Jones, Day, Reavis & Pogue, Columbus, OH, Kenneth B. Wilson and David H. Kramer, Wilson Sonsini Goodrich & Rosati, Palo Alto, CA, for Plaintiffs.

      25

              Alan Charles Witten, McShane, Breitfeller & Witten, Columbus, OH, Ralph A. Jacobs, Hoyle, Morris & Kerr, Philadelphia, PA, for Defendants.

      28
      MEMORANDUM OPINION AND ORDER
      30

              GRAHAM, District Judge.

      32

              This case presents novel issues regarding the commercial use of the Internet, specifically the right of an online computer service to prevent a commercial enterprise from sending unsolicited electronic mail advertising to its subscribers.

      34

              Plaintiff CompuServe Incorporated ("CompuServe") is one of the major national commercial online computer services. It operates a computer communication service through a proprietary nationwide computer network. In addition to allowing access to the extensive content available within its own proprietary network, CompuServe also provides its subscribers with a link to the much larger resources of the Internet. This allows its subscribers to send and receive electronic messages, known as "e-mail," by the Internet. Defendants Cyber Promotions, Inc. and its president Sanford Wallace are in the business of sending unsolicited e-mail advertisements on behalf of themselves and their clients to hundreds of thousands of Internet users, many of whom are CompuServe subscribers. CompuServe has notified defendants that they are prohibited from using its computer equipment to process and store the unsolicited e-mail and has requested that they terminate the practice. Instead, defendants have sent an increasing volume of e-mail solicitations to CompuServe subscribers. CompuServe has attempted to employ technological means to block the flow of defendants' e-mail transmissions to its computer equipment, but to no avail.

      36

              This matter is before the Court on the application of CompuServe for a preliminary injunction which would extend the duration of the temporary restraining order issued by this Court on October 24, 1996 and which would in addition prevent defendants from sending unsolicited advertisements to CompuServe subscribers.

      38

              For the reasons which follow, this Court holds that where defendants engaged in a course of conduct of transmitting a substantial volume of electronic data in the form of unsolicited e-mail to plaintiff's proprietary computer equipment, where defendants continued such practice after repeated demands to cease and desist, and where defendants deliberately evaded plaintiff's affirmative efforts to protect its computer equipment from such use, plaintiff has a viable claim for trespass to personal property and is entitled to injunctive relief to protect its property.

      41
      I.
      43

              The Court will begin its analysis of the issues by acknowledging, for the purpose of providing a background, certain findings of

      45

      Page 1018

      47

      fact recently made by another district court in a case involving the Internet:

      49

              1. The Internet is not a physical or tangible entity, but rather a giant network which interconnects innumerable smaller groups of linked computer networks. It is thus a network of networks....

      51

              2. Some networks are "closed" networks, not linked to other computers or networks. Many networks, however, are connected to other networks, which are in turn connected to other networks in a manner which permits each computer in any network to communicate with computers on any other network in the system. This global Web of linked networks and computers is referred to as the Internet.

      53

              3. The nature of the Internet is such that it is very difficult, if not impossible, to determine its size at a given moment. It is indisputable, however, that the Internet has experienced extraordinary growth in recent years.... In all, reasonable estimates are that as many as 40 million people around the world can and do access the enormously flexible communication Internet medium. That figure is expected to grow to 200 million Internet users by the year 1999.

      55

              4. Some of the computers and computer networks that make up the network are owned by governmental and public institutions, some are owned by non-profit organizations, and some are privately owned. The resulting whole is a decentralized, global medium of communications — or "cyberspace" — that links people, institutions, corporations, and governments around the world....

      57

              ....

      59

              11. No single entity — academic, corporate, governmental, or non-profit — administers the Internet. It exists and functions as a result of the fact that hundreds of thousands of separate operators of computers and computer networks independently decided to use common data transfer protocols to exchange communications and information with other computers (which in turn exchange communications and information with still other computers). There is no centralized storage location, control point, or communications channel for the Internet, and it would not be technically feasible for a single entity to control all of the information conveyed on the Internet.

      61

              American Civil Liberties Union v. Reno, 929 F.Supp. 824, 830-832 (E.D.Pa.1996). In 1994, one commentator noted that "advertisements on the current Internet computer network are not common because of that network's not-for-profit origins." Trotter Hardy, The Proper Legal Regime for "Cyberspace", 55 U.Pitt.L.Rev. 993, 1027 (1994). In 1997, that statement is no longer true.

      63

              Internet users often pay a fee for Internet access. However, there is no per-message charge to send electronic messages over the Internet and such messages usually reach their destination within minutes. Thus electronic mail provides an opportunity to reach a wide audience quickly and at almost no cost to the sender. It is not surprising therefore that some companies, like defendant Cyber Promotions, Inc., have begun using the Internet to distribute advertisements by sending the same unsolicited commercial message to hundreds of thousands of Internet users at once. Defendants refer to this as "bulk e-mail," while plaintiff refers to it as "junk e-mail." In the vernacular of the Internet, unsolicited e-mail advertising is sometimes referred to pejoratively as "spam."1

      65

              CompuServe subscribers use CompuServe's domain name "CompuServe.com" together with their own unique alpha-numeric identifier to form a distinctive e-mail mailing address. That address may be used by the subscriber to exchange electronic mail with any one of tens of millions of other Internet users who have electronic mail capability. E-mail sent to CompuServe subscribers is processed and stored on CompuServe's proprietary computer equipment. Thereafter, it becomes accessible to CompuServe's subscribers, who can access CompuServe's equipment and electronically retrieve those messages.

      67

      Page 1019

      69

              Over the past several months, CompuServe has received many complaints from subscribers threatening to discontinue their subscription unless CompuServe prohibits electronic mass mailers from using its equipment to send unsolicited advertisements. CompuServe asserts that the volume of messages generated by such mass mailings places a significant burden on its equipment which has finite processing and storage capacity. CompuServe receives no payment from the mass mailers for processing their unsolicited advertising. However, CompuServe's subscribers pay for their access to CompuServe's services in increments of time and thus the process of accessing, reviewing and discarding unsolicited e-mail costs them money, which is one of the reasons for their complaints. CompuServe has notified defendants that they are prohibited from using its proprietary computer equipment to process and store unsolicited e-mail and has requested them to cease and desist from sending unsolicited e-mail to its subscribers. Nonetheless, defendants have sent an increasing volume of e-mail solicitations to CompuServe subscribers.

      71

              In an effort to shield its equipment from defendants' bulk e-mail, CompuServe has implemented software programs designed to screen out the messages and block their receipt. In response, defendants have modified their equipment and the messages they send in such a fashion as to circumvent CompuServe's screening software. Allegedly, defendants have been able to conceal the true origin of their messages by falsifying the point-of-origin information contained in the header of the electronic messages. Defendants have removed the "sender" information in the header of their messages and replaced it with another address. Also, defendants have developed the capability of configuring their computer servers to conceal their true domain name and appear on the Internet as another computer, further concealing the true origin of the messages. By manipulating this data, defendants have been able to continue sending messages to CompuServe's equipment in spite of CompuServe's protests and protective efforts.

      73

              Defendants assert that they possess the right to continue to send these communications to CompuServe subscribers. CompuServe contends that, in doing so, the defendants are trespassing upon its personal property.

      76
      II.
      78

              The grant or denial of a motion for preliminary injunction rests within the discretion of the trial court. Deckert v. Independence Shares Corp., 311 U.S. 282, 61 S.Ct. 229, 85 L.Ed. 189 (1940). In determining whether a motion for preliminary injunction should be granted, a court must consider and balance four factors: (1) the likelihood that the party seeking the preliminary injunction will succeed on the merits of the claim; (2) whether the party seeking the injunction will suffer irreparable harm without the grant of the extraordinary relief; (3) the probability that granting the injunction will cause substantial harm to others; and (4) whether the public interest is advanced by the issuance of the injunction. Washington v. Reno, 35 F.3d 1093, 1099 (6th Cir.1994); International Longshoremen's Assoc. v. Norfolk S. Corp., 927 F.2d 900, 903 (6th Cir.1991). None of these individual factors constitute prerequisites that must be met for the issuance of a preliminary injunction, they are instead factors that are to be balanced. In re DeLorean Motor Co., 755 F.2d 1223, 1229 (6th Cir. 1985). A preliminary injunction is customarily granted on the basis of procedures that are less formal and evidence that is less complete than in a full trial on the merits. Indeed, "[a] party ... is not required to prove his case in full at a preliminary injunction hearing." University of Texas v. Camenisch, 451 U.S. 390, 395, 101 S.Ct. 1830, 1834, 68 L.Ed.2d 175 (1981).

      81
      III.
      83

              This Court shall first address plaintiff's motion as it relates to perpetuating the temporary restraining order filed on October 24, 1996. That order enjoins defendants from:

      85

              (i) Using CompuServe accounts or CompuServe's equipment or support services to send or receive electronic mail or messages

      87

      Page 1020

      89

      or in connection with the sending or receiving of electronic mail or messages;

      91

              (ii) Inserting any false reference to a CompuServe account or CompuServe equipment in any electronic message sent by Defendants; and

      93

              (iii) Falsely representing or causing their electronic mail or messages to bear the representation that any electronic mail or message sent by Defendants was sent by or originated from CompuServe or a CompuServe account.

      95

              (Temporary Restraining Order at 4).

      97

              As a general matter, the findings of this Court enunciated in its temporary restraining order are applicable to the request for preliminary injunction now at issue. The behavior described in subsections (ii) and (iii) of the temporary restraining order would be actionable as false representations or descriptions under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Also, the same behavior is actionable under the Ohio Deceptive Trade Practices Act, Ohio Rev.Code § 4165(B) and (D).

      99

              Defendants argue that the restrictions in the temporary restraining order are no longer necessary because defendants no longer have a CompuServe account. That being the case, a preliminary injunction perpetuating the proscribed activity articulated in subsection (i) of the temporary restraining order will present no hardship at all to defendants. Next, it does not appear that defendants would need to have a CompuServe account to perpetrate the proscribed acts articulated in subsections (ii) and (iii) of the temporary restraining order. Therefore, the fact that defendants no longer have an account with plaintiff does not vitiate the need which CompuServe has demonstrated for an injunction proscribing the acts set forth in those subsections.

      101

              For the foregoing reasons and the reasons articulated in the temporary restraining order issued by this Court, defendants Cyber Promotions, Inc. and its president Sanford Wallace are hereby enjoined from performing any of the acts therein described during the pendency of this litigation.

      104
      IV.
      106

              This Court will now address the second aspect of plaintiff's motion in which it seeks to enjoin defendants Cyber Promotions, Inc. and its president Sanford Wallace from sending any unsolicited advertisements to any electronic mail address maintained by CompuServe.

      108

              CompuServe predicates this aspect of its motion for a preliminary injunction on the common law theory of trespass to personal property or to chattels, asserting that defendants' continued transmission of electronic messages to its computer equipment constitutes an actionable tort.

      110

              Trespass to chattels has evolved from its original common law application, concerning primarily the asportation of another's tangible property, to include the unauthorized use of personal property:

      112

              Its chief importance now, is that there may be recovery ... for interferences with the possession of chattels which are not sufficiently important to be classed as conversion, and so to compel the defendant to pay the full value of the thing with which he has interfered. Trespass to chattels survives today, in other words, largely as a little brother of conversion.

      114

              Prosser & Keeton, Prosser and Keeton on Torts, § 14, 85-86 (1984).

      116

              The scope of an action for conversion recognized in Ohio may embrace the facts in the instant case. The Supreme Court of Ohio established the definition of conversion under Ohio law in Baltimore & O.R. Co. v. O'Donnell, 49 Ohio St. 489, 32 N.E. 476, 478 (1892) by stating that:

      118

              [I]n order to constitute a conversion, it was not necessary that there should have been an actual appropriation of the property by the defendant to its own use and benefit. It might arise from the exercise of a dominion over it in exclusion of the rights of the owner, or withholding it from his possession under a claim inconsistent with his rights. If one take the property of another, for a temporary purpose only, in disregard of the owner's right, it is a conversion. Either a wrongful taking, an assumption of ownership, an illegal use or

      120

      Page 1021

      122

      misuse, or a wrongful detention of chattels will constitute a conversion.

      124

              Id. at 497-98, 32 N.E. 476; see also Miller v. Uhl, 37 Ohio App. 276, 174 N.E. 591 (1929); Great American Mut. Indem. Co. v. Meyer, 18 Ohio App. 97 (1924); 18 O. Jur.3d, Conversion § 17. While authority under Ohio law respecting an action for trespass to chattels is extremely meager, it appears to be an actionable tort. See State of Ohio v. Herbert, 49 Ohio St.2d 88, 119, 358 N.E.2d 1090, 1106 (1976) (dissenting opinion) ("any workable cause of action would appear to be trespass to chattels"); see also Greenwald v. Kearns, 104 Ohio App. 473, 145 N.E.2d 462 (1957) (trespass on the rights of plaintiff in personal property is a precursor to an act in conversion); Simmons v. Dimitrouleas Wallcovering, Inc., No. 14804, 1995 WL 19136, at *2 (Ohio App. Jan.18, 1995) (the court of appeals acknowledged that trespass to chattel claims were barred because those claims were dependent upon claimant's ownership of the subject personal property); Klinebriel v. Smith, No. 94CA1641, 1996 WL 57947, at *2 (Ohio App. Feb.6, 1996) (where the court of appeals let stand a jury award on a "trespass against personal property" claim); Springfield Bank v. Caserta, 10 B.R. 57 (Bankr. S.D.Ohio 1981) (common law principles of trespass to chattels in Am.Jur.2d applied as controlling under Ohio law).

      126

              Both plaintiff and defendants cite the Restatement (Second) of Torts to support their respective positions. In determining a question unanswered by state law, it is appropriate for this Court to consider such sources as the restatement of the law and decisions of other jurisdictions. Bailey v. V & O Press Co., Inc., 770 F.2d 601, 604-606 (6th Cir. 1985) (where court considered positions expressed in the Restatement (Second) of Torts in interpreting Ohio's principles of comparative negligence) Garrison v. Jervis B. Webb Co., 583 F.2d 258, 262 n. 6 (1978); see also Wright, Miller & Cooper, Federal Practice and Procedure, § 4507 (West 1996).

      128

              The Restatement § 217(b) states that a trespass to chattel may be committed by intentionally using or intermeddling with the chattel in possession of another. Restatement § 217, Comment e defines physical "intermeddling" as follows:

      130

              ... intentionally bringing about a physical contact with the chattel. The actor may commit a trespass by an act which brings him into an intended physical contact with a chattel in the possession of another[.]

      132

              Electronic signals generated and sent by computer have been held to be sufficiently physically tangible to support a trespass cause of action. Thrifty-Tel, Inc., v. Bezenek, 46 Cal.App.4th 1559, 1567, 54 Cal.Rptr.2d 468 (1996); State v. McGraw, 480 N.E.2d 552, 554 (Ind.1985) (Indiana Supreme Court recognizing in dicta that a hacker's unauthorized access to a computer was more in the nature of trespass than criminal conversion); and State v. Riley, 121 Wash.2d 22, 846 P.2d 1365 (1993) (computer hacking as the criminal offense of "computer trespass" under Washington law). It is undisputed that plaintiff has a possessory interest in its computer systems. Further, defendants' contact with plaintiff's computers is clearly intentional. Although electronic messages may travel through the Internet over various routes, the messages are affirmatively directed to their destination.

      134

              Defendants, citing Restatement (Second) of Torts § 221, which defines "dispossession", assert that not every interference with the personal property of another is actionable and that physical dispossession or substantial interference with the chattel is required. Defendants then argue that they did not, in this case, physically dispossess plaintiff of its equipment or substantially interfere with it. However, the Restatement (Second) of Torts § 218 defines the circumstances under which a trespass to chattels may be actionable:

      136

              One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if,

      138

              (a) he dispossesses the other of the chattel, or

      140

              (b) the chattel is impaired as to its condition, quality, or value, or

      142

              (c) the possessor is deprived of the use of the chattel for a substantial time, or

      144

              (d) bodily harm is caused to the possessor, or harm is caused to some person or thing

      146

      Page 1022

      148

      in which the possessor has a legally protected interest.

      150

              Therefore, an interference resulting in physical dispossession is just one circumstance under which a defendant can be found liable. Defendants suggest that "[u]nless an alleged trespasser actually takes physical custody of the property or physically damages it, courts will not find the `substantial interference' required to maintain a trespass to chattel claim." (Defendant's Memorandum at 13). To support this rather broad proposition, defendants cite only two cases which make any reference to the Restatement. In Glidden v. Szybiak, 95 N.H. 318, 63 A.2d 233 (1949), the court simply indicated that an action for trespass to chattels could not be maintained in the absence of some form of damage. The court held that where plaintiff did not contend that defendant's pulling on her pet dog's ears caused any injury, an action in tort could not be maintained. Id. 63 A.2d at 235. In contrast, plaintiff in the present action has alleged that it has suffered several types if injury as a result of defendants' conduct. In Koepnick v. Sears Roebuck & Co., 158 Ariz. 322, 762 P.2d 609 (1988) the court held that a two-minute search of an individual's truck did not amount to a "dispossession" of the truck as defined in Restatement § 221 or a deprivation of the use of the truck for a substantial time. It is clear from a reading of Restatement § 218 that an interference or intermeddling that does not fit the § 221 definition of "dispossession" can nonetheless result in defendants' liability for trespass. The Koepnick court did not discuss any of the other grounds for liability under Restatement § 218.

      152

              A plaintiff can sustain an action for trespass to chattels, as opposed to an action for conversion, without showing a substantial interference with its right to possession of that chattel. Thrifty-Tel, Inc., 46 Cal. App.4th at 1567, 54 Cal.Rptr.2d 468 (quoting Zaslow v. Kroenert, 29 Cal.2d 541, 176 P.2d 1 (Cal.1946)). Harm to the personal property or diminution of its quality, condition, or value as a result of defendants' use can also be the predicate for liability. Restatement § 218(b).

      154

              An unprivileged use or other intermeddling with a chattel which results in actual impairment of its physical condition, quality or value to the possessor makes the actor liable for the loss thus caused. In the great majority of cases, the actor's intermeddling with the chattel impairs the value of it to the possessor, as distinguished from the mere affront to his dignity as possessor, only by some impairment of the physical condition of the chattel. There may, however, be situations in which the value to the owner of a particular type of chattel may be impaired by dealing with it in a manner that does not affect its physical condition.... In such a case, the intermeddling is actionable even though the physical condition of the chattel is not impaired.

      156

              The Restatement (Second) of Torts § 218, comment h. In the present case, any value CompuServe realizes from its computer equipment is wholly derived from the extent to which that equipment can serve its subscriber base. Michael Mangino, a software developer for CompuServe who monitors its mail processing computer equipment, states by affidavit that handling the enormous volume of mass mailings that CompuServe receives places a tremendous burden on its equipment. (Mangino Supp. Dec. at ¶ 12). Defendants' more recent practice of evading CompuServe's filters by disguising the origin of their messages commandeers even more computer resources because CompuServe's computers are forced to store undeliverable e-mail messages and labor in vain to return the messages to an address that does not exist. (Mangino Supp. Dec. at ¶¶ 7-8). To the extent that defendants' multitudinous electronic mailings demand the disk space and drain the processing power of plaintiff's computer equipment, those resources are not available to serve CompuServe subscribers. Therefore, the value of that equipment to CompuServe is diminished even though it is not physically damaged by defendants' conduct.

      158

              Next, plaintiff asserts that it has suffered injury aside from the physical impact of defendants' messages on its equipment. Restatement § 218(d) also indicates that recovery may be had for a trespass that causes

      160

      Page 1023

      162

      harm to something in which the possessor has a legally protected interest. Plaintiff asserts that defendants' messages are largely unwanted by its subscribers, who pay incrementally to access their e-mail, read it, and discard it. Also, the receipt of a bundle of unsolicited messages at once can require the subscriber to sift through, at his expense, all of the messages in order to find the ones he wanted or expected to receive. These inconveniences decrease the utility of CompuServe's e-mail service and are the foremost subject in recent complaints from CompuServe subscribers. Patrick Hole, a customer service manager for plaintiff, states by affidavit that in November 1996 CompuServe received approximately 9,970 e-mail complaints from subscribers about junk e-mail, a figure up from approximately two hundred complaints the previous year. (Hole 2d Supp. Dec. at ¶ 4). Approximately fifty such complaints per day specifically reference defendants. (Hole Supp. Dec. at ¶ 3). Defendants contend that CompuServe subscribers are provided with a simple procedure to remove themselves from the mailing list. However, the removal procedure must be performed by the e-mail recipient at his expense, and some CompuServe subscribers complain that the procedure is inadequate and ineffectual. (See, e.g., Hole Supp. Dec. at ¶ 8).

      164

              Many subscribers have terminated their accounts specifically because of the unwanted receipt of bulk e-mail messages. (Hole Supp. Dec. at ¶ 9, Hole 2d Supp. Dec. at ¶ 6). Defendants' intrusions into CompuServe's computer systems, insofar as they harm plaintiff's business reputation and goodwill with its customers, are actionable under Restatement § 218(d).

      166

              The reason that the tort of trespass to chattels requires some actual damage as a prima facie element, whereas damage is assumed where there is a trespass to real property, can be explained as follows:

      168

              The interest of a possessor of a chattel in its inviolability, unlike the similar interest of a possessor of land, is not given legal protection by an action for nominal damages for harmless intermeddlings with the chattel. In order that an actor who interferes with another's chattel may be liable, his conduct must affect some other and more important interest of the possessor. Therefore, one who intentionally intermeddles with another's chattel is subject to liability only if his intermeddling is harmful to the possessor's materially valuable interest in the physical condition, quality, or value of the chattel, or if the possessor is deprived of the use of the chattel for a substantial time, or some other legally protected interest of the possessor is affected as stated in Clause (c). Sufficient legal protection of the possessor's interest in the mere inviolability of his chattel is afforded by his privilege to use reasonable force to protect his possession against even harmless interference.

      170

              Restatement (Second) of Torts § 218, Comment e (emphasis added). Plaintiff CompuServe has attempted to exercise this privilege to protect its computer systems. However, defendants' persistent affirmative efforts to evade plaintiff's security measures have circumvented any protection those self-help measures might have provided. In this case CompuServe has alleged and supported by affidavit that it has suffered several types of injury as a result of defendants' conduct. The foregoing discussion simply underscores that the damage sustained by plaintiff is sufficient to sustain an action for trespass to chattels. However, this Court also notes that the implementation of technological means of self-help, to the extent that reasonable measures are effective, is particularly appropriate in this type of situation and should be exhausted before legal action is proper.

      172

              Under Restatement § 252, the owner of personal property can create a privilege in the would-be trespasser by granting consent to use the property. A great portion of the utility of CompuServe's e-mail service is that it allows subscribers to receive messages from individuals and entities located anywhere on the Internet. Certainly, then, there is at least a tacit invitation for anyone on the Internet to utilize plaintiff's computer

      174

      Page 1024

      176

      equipment to send e-mail to its subscribers.2 Buchanan Marine, Inc. v. McCormack Sand Co., 743 F.Supp. 139 (E.D.N.Y.1990) (whether there is consent to community use is a material issue of fact in an action for trespass to chattels). However, in or around October 1995, CompuServe employee Jon Schmidt specifically told Mr. Wallace that he was "prohibited from using CompuServe's equipment to send his junk e-mail messages." (Schmidt Dec. at ¶ 5). There is apparently some factual dispute as to this point, but it is clear from the record that Mr. Wallace became aware at about this time that plaintiff did not want to receive messages from Cyber Promotions and that plaintiff was taking steps to block receipt of those messages. (Transcript of December 15, 1996 Hearing at 81-86).

      178

              Defendants argue that plaintiff made the business decision to connect to the Internet and that therefore it cannot now successfully maintain an action for trespass to chattels. Their argument is analogous to the argument that because an establishment invites the public to enter its property for business purposes, it cannot later restrict or revoke access to that property, a proposition which is erroneous under Ohio law. See, e.g., State v. Carriker, 5 Ohio App.2d 255, 214 N.E.2d 809 (1964) (the law in Ohio is that a business invitee's privilege to remain on the premises of another may be revoked upon the reasonable notification to leave by the owner or his agents); Allstate Ins. Co. v. U.S. Associates Realty, Inc., 11 Ohio App.3d 242, 464 N.E.2d 169 (1983) (notice of express restriction or limitation on invitation turns business invitee into trespasser). On or around October 1995, CompuServe notified defendants that it no longer consented to the use of its proprietary computer equipment. Defendants' continued use thereafter was a trespass. Restatement (Second) of Torts §§ 252 and 892A(5); see also Restatement (Second) of Torts § 217, Comment f ("The actor may commit a new trespass by continuing an intermeddling which he has already begun, with or without the consent of the person in possession. Such intermeddling may persist after the other's consent, originally given, has been terminated."); Restatement (Second) of Torts § 217, Comment g.

      180

              Further, CompuServe expressly limits the consent it grants to Internet users to send e-mail to its proprietary computer systems by denying unauthorized parties the use of CompuServe equipment to send unsolicited electronic mail messages. (Kolehmainen Dec. at ¶ 2). This policy statement, posted by CompuServe online, states as follows:

      182

              Compuserve is a private online and communications services company. CompuServe does not permit its facilities to be used by unauthorized parties to process and store unsolicited e-mail. If an unauthorized party attempts to send unsolicited messages to e-mail addresses on a CompuServe service, Compuserve will take appropriate action to attempt to prevent those messages from being processed by CompuServe. Violations of CompuServe's policy prohibiting unsolicited e-mail should be reported to....

      184

              Id. at ¶¶ 2 and 3. Defendants Cyber Promotions, Inc. and its president Sanford Wallace have used plaintiff's equipment in a fashion that exceeds that consent. The use of personal property exceeding consent is a trespass. City of Amsterdam v. Daniel Goldreyer, Ltd., 882 F.Supp. 1273 (E.D.N.Y. 1995); Restatement (Second) of Torts § 256. It is arguable that CompuServe's policy statement, insofar as it may serve as a limitation upon the scope of its consent to the use of its computer equipment, may be insufficiently communicated to potential third-party users when it is merely posted at some location on the network. However, in the present case the record indicates that defendants were actually notified that they were using CompuServe's equipment in an unacceptable manner. To prove that a would-be trespasser acted with the intent required to support liability in tort it is crucial that defendant be placed on notice that he is trespassing.

      186

      Page 1025

      188

              As a general matter, the public possesses a privilege to reasonably use the facilities of a public utility, Restatement (Second) of Torts § 259, but Internet service providers have been held not to be common carriers. Religious Technology Center v. Netcom On-Line Communication Services, Inc., 907 F.Supp. 1361 (N.D.Cal.1995). The definition of public utility status under Ohio law was recently articulated in A & B Refuse Disposers, Inc. v. Bd. Of Ravenna Township Trustees, 64 Ohio St.3d 385, 596 N.E.2d 423 (1992). The Ohio Supreme Court held that the determination of whether an entity is a "public utility" requires consideration of several factors relating to the "public service" and "public concern" characteristics of a public utility. Id. 596 N.E.2d at 426. The public service characteristic contemplates an entity which devotes an essential good or service to the general public which the public in turn has a legal right to demand or receive. Id. at 425. CompuServe's network, Internet access and electronic mail services are simply not essential to society. There are many alternative forms of communication which are customarily used for the same purposes. Further, only a minority of society at large has the equipment to send and receive e-mail messages via the Internet, and even fewer actually do. The second characteristic of a public utility contemplates an entity which conducts its operations in such manner as to be a matter of public concern, that is, a public utility normally occupies a monopolistic or ogopolistic position in the relevant marketplace. Id. at 425-426. Defendants estimate that plaintiff serves some five million Internet users worldwide. However, there are a number of major Internet service providers that have very large subscriber bases, and with a relatively minor capital investment, anyone can acquire the computer equipment necessary to provide Internet access services on a smaller scale. Furthermore, Internet users are not a "captive audience" to any single service provider, but can transfer from one service to another until they find one that best suits their needs. Finally, the Ohio Supreme Court made clear that a party asserting public utility status is required to support that assertion with evidence going to the relevant aforementioned factors. Id. 596 N.E.2d at 427. Defendants have not argued that CompuServe is a public utility, much less produced evidence tending to support such a conclusion. Therefore, CompuServe is not a public utility as that status is defined under Ohio law and defendants can not be said to enjoy a special privilege to use CompuServe's proprietary computer systems.

      190

              In response to the trespass claim, defendants argue that they have the right to continue to send unsolicited commercial e-mail to plaintiff's computer systems under the First Amendment to the United States Constitution. The First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press." The United States Supreme Court has recognized that "the constitutional guarantee of free speech is a guarantee only against abridgement by government, federal or state." Hudgens v. NLRB, 424 U.S. 507, 513, 96 S.Ct. 1029, 1033, 47 L.Ed.2d 196 (1976). Indeed, the protection of the First Amendment is not a shield against "merely private conduct." Hurley v. Irish-American Gay Group of Boston, 515 U.S. 557, ___, 115 S.Ct. 2338, 2344, 132 L.Ed.2d 487 (1995) (citation omitted).

      192

              Very recently, in an action filed by Cyber Promotions, Inc. against America Online, Inc. ("AOL") the United States District Court for the Eastern District of Pennsylvania held that AOL, a company selling services that are similar to those of CompuServe, is private actor. Cyber Promotions, Inc. v. American Online, Inc., 948 F.Supp. 436, 443-44 (E.D.Pa.1996). That case involved the question of whether Cyber Promotions had the First Amendment right to send unobstructed e-mail to AOL subscribers. The court held that Cyber Promotions had no such right and that, inter alia, AOL was not exercising powers that are traditionally the exclusive prerogative of the state, such as where a private company exercises municipal powers by running a company town. Id. at 442-43; Blum v. Yaretsky, 457 U.S. 991, 1004-05, 102 S.Ct. 2777, 2785-86, 73 L.Ed.2d 534 (1982); Marsh v. Alabama, 326 U.S. 501, 66 S.Ct. 276, 90 L.Ed. 265 (1946).

      194

      Page 1026

      196

      This Court agrees with the conclusions reached by the United States District Court for the Eastern District of Pennsylvania.

      198

              In the present action, CompuServe is a private company. Moreover, the mere judicial enforcement of neutral trespass laws by the private owner of property does not alone render it a state actor. Rotunda & Nowak, Treatise on Constitutional Law § 16.3, 546 (West 1992). Defendants do not argue that CompuServe is anything other than a private actor. Instead, defendants urge that because CompuServe is so intimately involved in this new medium it might be subject to some special form of regulation. Defendants cite Associated Press v. United States, 326 U.S. 1, 65 S.Ct. 1416, 89 L.Ed. 2013 (1945), and Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994), which stand for the proposition that when a private actor has a certain quantum of control over a central avenue of communication, then the First Amendment might not prevent the government from enacting legislation requiring public access to private property. No such legislation yet exists that is applicable to CompuServe. Further, defendants' discussion concerning the extent to which the Internet may be regulated (or should be regulated) is irrelevant because no government entity has undertaken to regulate the Internet in a manner that is applicable to this action. Indeed, if there were some applicable statutory scheme in place this Court would not be required to apply paradigms of common law to the case at hand.

      200

              In Lloyd Corp. v. Tanner, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131 (1972), protestors of the Vietnam War sought to pass out written materials in a private shopping center. Even though the customers of the shopping center were the intended recipients of the communication, the Supreme Court held that allowing the First Amendment to trump private property rights is unwarranted where there are adequate alternative avenues of communication. Id. at 567, 92 S.Ct. at 2228. The Supreme Court stated that:

      202

              Although ... the courts properly have shown a special solicitude for the guarantees of the First Amendment, this Court has never held that a trespasser or an uninvited guest may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes only.

      204

              Id. at 567-68, 92 S.Ct. at 2228 (emphasis added). Defendants in the present action have adequate alternative means of communication available to them. Not only are they free to send e-mail advertisements to those on the Internet who do not use CompuServe accounts, but they can communicate to CompuServe subscribers as well through online bulletin boards, web page advertisements, or facsimile transmissions, as well as through more conventional means such as the U.S. mail or telemarketing. Defendants' contention, referring to the low cost of the electronic mail medium, that there are no adequate alternative means of communication is unpersuasive. There is no constitutional requirement that the incremental cost of sending massive quantities of unsolicited advertisements must be borne by the recipients. The legal concept in Lloyd that private citizens are entitled to enforce laws of trespass against would-be communicators is applicable to this case.

      206

              Defendants assert that CompuServe has assumed the role of a postmaster, to whom all of the strictures of the First Amendment apply, and that to allow it to enjoy a legally protected interest in its computer equipment in this context is to license a form of censorship which violates the First Amendment. However, such an assertion must be accompanied by a showing that CompuServe is a state actor. As earlier mentioned, defendants have neither specifically argued this point nor provided any evidence to support it. CompuServe is entitled to restrict access to its private property.

      208

              "The First and Fourteenth Amendments have never been treated as absolutes. Freedom of speech or press does not mean that one can talk or distribute where, when and how one chooses." Breard v. City of Alexandria, 341 U.S. 622, 642, 71 S.Ct. 920, 932, 95 L.Ed. 1233 (1951) (upholding local ordinances banning commercial solicitations over First Amendment objections) (footnote omitted). In Rowan v. U.S. Post Office Dept., 397 U.S.

      210

      Page 1027

      212

      728, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970) the United States Supreme Court held that the First Amendment did not forbid federal legislation that allowed addressees to remove themselves from mailing lists and stop all future mailings. The Court stated that the "mailer's right to communicate must stop at the mailbox of an unreceptive addressee .... [t]o hold less would be to license a form of trespass[.]" Id. at 736-37, 90 S.Ct. at 1490.

      214

              In Tillman v. Distribution Sys. Of America, Inc., 224 A.D.2d 79, 648 N.Y.S.2d 630 (1996) the plaintiff complained that the defendant continued to throw newspapers on his property after being warned not to do so. The court held that the defendant newspaper distributor had no First Amendment right to continue to throw newspapers onto the property of the plaintiff. After discussing the Supreme Court cases of Rowan and Breard, supra, the court pointed out that:

      216

              The most critical and fundamental distinction between the cases cited above, on the one hand, and the present case, on the other, is based on the fact that here we are not dealing with a government agency which seeks to preempt in some way the ability of a publisher to contact a potential reader; rather, we are dealing with a reader who is familiar with a publisher's product, and who is attempting to prevent the unwanted dumping of this product on his property. None of the cases cited by the defendants stands for the proposition that the Free Speech Clause prohibits such a landowner from resorting to his common-law remedies in order to prevent such unwanted dumping. There is, in our view, nothing in either the Federal or State Constitutions which requires a landowner to tolerate a trespass whenever the trespasser is a speaker, or the distributor of written speech, who is unsatisfied with the fora which may be available on public property, and who thus attempts to carry his message to private property against the will of the owner.

      218

              Id. 648 N.Y.S.2d at 635. The court concluded, relying on Lloyd, supra, that the property rights of the private owner could not be overwhelmed by the First Amendment. Id. 648 N.Y.S.2d at 636.

      220

              In the present case, plaintiff is physically the recipient of the defendants' messages and is the owner of the property upon which the transgression is occurring. As has been discussed, plaintiff is not a government agency or state actor which seeks to preempt defendants' ability to communicate but is instead a private actor trying to tailor the nuances of its service to provide the maximum utility to its customers.

      222

              Defendants' intentional use of plaintiff's proprietary computer equipment exceeds plaintiff's consent and, indeed, continued after repeated demands that defendants cease. Such use is an actionable trespass to plaintiff's chattel. The First Amendment to the United States Constitution provides no defense for such conduct.

      224

              Plaintiff has demonstrated a likelihood of success on the merits which is sufficient to warrant the issuance of the preliminary injunction it has requested.

      226

              As already discussed at some length, plaintiff has submitted affidavits supporting its contention that it will suffer irreparable harm without the grant of the preliminary injunction. As an initial matter, it is important to point out that the Court may accept affidavits as evidence of irreparable harm. Wounded Knee Legal Defense/Offense Committee v. Federal Bureau of Investigation, 507 F.2d 1281, 1287 (8th Cir.1974); see generally Wright, Miller & Kane, Federal Practice and Procedure § 2949, at 218-220 (West 1995). Defendants suggest that there are other reasons why CompuServe subscribers terminate their accounts, but do not offer any evidence which contradicts plaintiff's affidavits.

      228

              Normally, a preliminary injunction is not appropriate where an ultimate award of monetary damages will suffice. Montgomery v. Carr, 848 F.Supp. 770 (S.D.Ohio 1993). However, money damages are only adequate if they can be reasonably computed and collected. Plaintiff has demonstrated that defendants' intrusions into their computer systems harm plaintiff's business reputation and goodwill. This is the sort of injury that warrants the issuance of a preliminary injunction because the actual loss

      230

      Page 1028

      232

      is impossible to compute. Basicomputer Corp. v. Scott, 973 F.2d 507 (6th Cir.1992); Economou v. Physicians Weight Loss Centers of America, 756 F.Supp. 1024 (N.D.Ohio 1991).

      234

              Plaintiff has shown that it will suffer irreparable harm without the grant of the preliminary injunction.

      236

              It is improbable that granting the injunction will cause substantial harm to defendant. Even with the grant of this injunction, defendants are free to disseminate their advertisements in other ways not constituting trespass to plaintiff's computer equipment. Further, defendants may continue to send electronic mail messages to the tens of millions of Internet users who are not connected through CompuServe's computer systems.

      238

              Finally, the public interest is advanced by the Court's protection of the common law rights of individuals and entities to their personal property. Defendants raise First Amendment concerns and argue that an injunction will adversely impact the public interest. High volumes of junk e-mail devour computer processing and storage capacity, slow down data transfer between computers over the Internet by congesting the electronic paths through which the messages travel, and cause recipients to spend time and money wading through messages that they do not want. It is ironic that if defendants were to prevail on their First Amendment arguments, the viability of electronic mail as an effective means of communication for the rest of society would be put at risk. In light of the foregoing discussion, those arguments are without merit. Further, those subscribing to CompuServe are not injured by the issuance of this injunction. Plaintiff has made a business decision to forbid Cyber Promotions and Mr. Wallace from using its computers to transmit messages to CompuServe subscribers. If CompuServe subscribers are unhappy with that decision, then they may make that known, perhaps by terminating their accounts and transferring to an Internet service provider which accepts unsolicited e-mail advertisements. That is a business risk which plaintiff has assumed.

      240

              Having considered the relevant factors, this Court concludes that the preliminary injunction that plaintiff requests is appropriate.

      243
      V.
      245

              Based on the foregoing, plaintiff's motion for a preliminary injunction is GRANTED. The temporary restraining order filed on October 24, 1996 by this Court is hereby extended in duration until final judgment is entered in this case. Further, defendants Cyber Promotions, Inc. and its president Sanford Wallace are enjoined from sending any unsolicited advertisements to any electronic mail address maintained by plaintiff CompuServe during the pendency of this action.

      247

              It is so ORDERED.

      249

      ---------------

      251 252

      Notes:

      255

      1. This term is derived from a skit performed on the British television show Monty Python's Flying Circus, in which the word "spam" is repeated to the point of absurdity in a restaurant menu.

      258

      2. That consent is apparently subject to express limitations. See Kolehmainen Dec. at ¶ 2 and discussion infra.

      260

      ---------------

    • 5.4 V. Intel Corp. v. Hamidi (Court of Appeal)--"The Critical Emails Case"

      Should tort law protect against a company's loss of productivity due to unsolicited emails?

      1
      114 Cal.Rptr.2d 244 (2001)
      3
      94 Cal.App.4th 325
      5
      INTEL CORPORATION, Plaintiff and Respondent,
      v.
      Kourosh Kenneth HAMIDI, Defendant and Appellant.
      7
      No. C033076.
      9

      Court of Appeal, Third District.

      11
      December 10, 2001.
      13
      Review Granted March 27, 2002.
      15

      246*246 Philip H. Weber, Placerville, for Defendant and Appellant.

      17

      Ann Brick for American Civil Liberties Union Foundation of Northern California; Christopher A. Hansen for American Civil Liberties Union Foundation, New York; and Deborah Pierce for Electronic Frontier Foundation, Amici Curiae for Defendant and Appellant.

      19

      Morrison & Foerster, Linda E. Shostak, Michael A. Jacobs, San Francisco, and Kurt E. Springmann, San Diego, for Plaintiff and Respondent.

      21

      245*245 MORRISON, J.

      23

      After Kourosh Kenneth Hamidi was fired by Intel Corporation, he began to air grievances about the company. Hamidi repeatedly flooded Intel's e-mail system. When its security department was unable to block or otherwise end Hamidi's mass emails, Intel filed this action. The trial court issued a permanent injunction stopping the campaign, on a theory of trespass to chattels.

      25

      On appeal Hamidi, supported by Amici Curiae Electronic Frontier Foundation (EFF) and American Civil Liberties Union (ACLU), urges trespass to chattels was not proven and, even if it was, the injunction violates free speech principles which require the elements of the tort be tempered in cases involving speech. We shall affirm.

      28
      FACTUAL AND PROCEDURAL BACKGROUND
      30

      Intel filed a brief complaint, alleging it maintains an internal, proprietary, e-mail system for use of its employees; the e-mail addresses are confidential; defendant Hamidi and FACE-Intel (Former and Current Employees of Intel, a defaulting party which did not appeal) obtained Intel's e-mail address list and on several occasions sent e-mail to up to 29,000 employees; on March 17, 1998, Intel sent a letter demanding Hamidi stop, but he refused. The complaint sought remedies based on theories of nuisance and trespass to chattels.

      32

      Intel moved for summary judgment and submitted a set of undisputed facts which Hamidi did not dispute. They establish: Hamidi is the FACE-Intel webmaster and spokesperson. He sent e-mails to between 8,000 and 35,000 Intel employees on six specific occasions. He ignored Intel's request to stop and took steps to evade its security measures. Intel's employees "spend significant amounts of time attempting to block and remove HAMIDI's e-mail from the INTEL computer systems," which are governed by policies which "limit use of the e-mail system to company business."

      34

      Hamidi filed a declaration in opposition to summary judgment, explaining "FACE-INTEL was formed to provide a medium for INTEL employees to air their grievances and concerns over employment conditions at INTEL. FACE-INTEL provides an extremely important forum for employees within an international corporation to communicate via a web page on the 247*247 Internet and via electronic mail, on common labor issues, that, due to geographical and other limitations, would not otherwise be possible." His six mass e-mailings "did not originate on INTEL property, nor were they sent to INTEL property. The electronic mails were sent over the internet to an internet server. [¶] With each of the electronic mailings [he] informed each recipient that [he] would remove them from the mailing list upon request. [He] only received 450 requests[.]"

      36

      Intel dropped its nuisance theory and claim for damages, and the trial court granted summary judgment. It issued an injunction that "defendants, their agents, servants, assigns, employees, officers, directors, and all those acting in concert for or with defendants are hereby permanently restrained and enjoined from sending unsolicited e-mail to addresses on INTEL's computer systems." Hamidi timely appealed.

      39
      STANDARD OF REVIEW
      41

      We review the judgment de nov o. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860, 107 Cal.Rptr.2d 841, 24 P.3d 493; Jackson v. Ryder Truck Rental, Inc. (1993) 16 Cal.App.4th 1830, 1836, 20 Cal.Rptr.2d 913; see Code Civ. Proc., § 437c, subd. (c) & subd. (o)(2).)

      44
      DISCUSSION

      47
      I. Intel Proved Hamidi Trespassed to its Chattels
      49

      The common law adapts to human endeavor. For example, if rules developed through judicial decisions for railroads prove nonsensical for automobiles, courts have the ability and duty to change them. (See generally, Keller, Condemned to Repeat the Past: The Reemergence of Misappropriation and other Common Law Theories of Protection for Intellectual Property (1998) 11 Harv.J.L. & Tech. 401, 403-406, 423-26.)

      51

      Trespass to chattels is somewhat arcane and suffers from desuetude. "The chief importance of the theory today, according to Prosser, is that there may be recovery for interferences with the possession of personal property that are not sufficiently important to be classed as conversion, i.e., as a `little brother of conversion.'" (5 Witkin, Summary of Cal. Law (9th ed.1988, 1999 Supp.) Torts, § 627A, p. 390; see id., § 610, pp. 707-708.) However, the tort has reemerged as an important rule of cyberspace.

      53

      We begin with Prosser, who explains: "The earliest cases in which the action of trespass was applied to chattels involved asportation, or carrying off, and a special form of the writ, known as trespass de bonis asportatis, was devised to deal with such situations. Later the action was extended to include cases where the goods were damaged but not taken—as where animals were killed or beaten. Later decisions extended the tort to include any direct and immediate intentional interference with a chattel in the possession of another. Thus it is a trespass to damage goods or destroy them, to make an unpermitted use of them, or to move them from one place to another." (Prosser and Keeton, Torts (5th ed. 1984) Trespass to Chattels, § 14, p. 85, fns. omitted.)

      55

      Although there was litigation over who could bring suit and over formal pleading requirements, the shape of the tort is simple. A leading American court approved this definition: "1. To constitute a trespass, there must be a disturbance of the plaintiffs possession. 2. The disturbance may be by an actual taking, a physical seizing or taking hold of the goods, removing them from their owner, or by exercising a control or authority over them inconsistent with their owner's possession." 248*248 (Holmes v. Doane (1855) 69 Mass. 328, 329.) The most common application is for a physical taking, even if momentary. (See Tubbs v. Delk (Mo.Ct.App.1996) 932 S.W.2d 454 [taking camera for five minutes, returning it with film intact].)

      57

      The Restatement is in accord, providing "A trespass to a chattel may be committed by intentionally ... (b) using or intermeddling with a chattel in the possession of another." (Rest.2d Torts, § 217, p. 417.) Most cases involve concrete harm to a chattel, "actual impairment of its physical condition, quality or value to the possessor ... as distinguished from the mere affront to [the owner's] dignity as possessor[.]" (§ 218, com. h, p. 422 [allowing some exceptions, such as use of another's toothbrush].)

      59

      The Restatement also provides "The interest of a possessor of a chattel in its inviolability, unlike the similar interest of a possessor of land, is not given legal protection by an action for nominal damages for harmless intermeddlings with the chattel. In order that an actor who interferes with another's chattel may be liable, his conduct must affect some other and more important interest of the possessor. Therefore, one who intentionally intermeddles with another's chattel is subject to liability only if his intermeddling is harmful to the possessor's materially valuable interest in the physical condition, quality, or value of the chattel, or if the possessor is deprived of the use of the chattel for a substantial time, or some other legally protected interest [is harmed.] Sufficient legal protection of the possessor's interest in the mere inviolability of his chattel is afforded by his privilege to use reasonable force to protect his possession against even harmless interference. ... [¶] Illustration: [¶] 2. A, a child, climbs upon the back of B's large dog and pulls its ears. No harm is done to the dog, or to any other legally protected interest of B. A is not liable to B." (§ 218, com. e, pp. 421-422; see Glidden v. Szybiak (1949) 95 N.H. 318, 320, 63 A.2d 233, 235.) This caveat speaks of "nominal damages." Intel does not seek damages, even nominal damages, to compensate for Hamidi's conduct; Intel wants to prevent him from repeating his conduct. In this case, the nature of the remedy sought colors the analysis.

      61

      "Originally, all types of trespass, including trespass to land, were punishable under the criminal law because the trespasser's conduct was regarded as a breach of the peace. When the criminal and civil aspects of trespass were separated, the civil action for trespass was colored by its past, and the idea that the peace of the community was put in danger by the trespasser's conduct influenced the courts' ideas of the character of the tort. Therefore, relief was granted to the plaintiff where he was not actually damaged, partly, at least, as a means of discouraging disruptive influences in the community. If then, there is an act on the part of the defendant interfering with the plaintiffs possession, which does or is likely to result in arousing conflict between them, that act will characterize the tort as a trespass, assuming of course that the other elements of the tort are made out." (7 Speiser et al, American Law of Torts (1990) Trespass, § 23:1, p. 592 (Speiser).)

      63

      The treatise just quoted states "As a number of very early cases show, any unlawful interference, however slight, with the enjoyment by another of his personal property, is a trespass." (Speiser, supra, § 23:23, p. 667.) The oldest case cited is Rand v. Sargent (1843) 23 Me. 326. Actually, "chasing cattle has been a trespass time out of mind" (Winfield & Jolowicz on Tort (10th ed. 1975) Trespass to Goods, p. 403), or at least since Jacobean times. (Farmer v. Hunt (1610) 1 Brown. & 249*249 Gold. 220 [123 Eng. Rep. 766]; see 1 Chitty on Pleading (7th Ed. [16th Amer. Ed.] 1876) Trespass, p. *193 ["hunting or chasing sheep, & c."].)

      65

      "A trespass to chattels is actionable per se without any proof of actual damage. Any unauthorised touching or moving of a chattel is actionable at the suit of the possessor of it, even though no harm ensues. So it is a trespass for a shop assistant to snatch a customer's handbag and detain it `for a few moments,' or to erase a tape-recording, or to show a private letter to an unauthorised person.... It may be very necessary for the protection of certain kinds of property, e.g., museum or art gallery exhibits, that this should be the law. Hence, the successful plaintiff will always be entitled to nominal damages at least[.]" (Salmond on Tort (21st ed. 1996) Trespass to Goods, § 6 .2, p. 95, fns. omitted.) Another treatise agrees that "any unpermitted contact with or impact upon another's chattel" is enough, but comments "Probably the courts will hold that direct and deliberate interference is trespass even if no damage ensues, but where the interference is by way of negligent or inadvertent contact, the general trend of recent judicial decisions and dicta in England suggest that there is a requirement of proof of special damage[.]" (Clerk & Lindsell on Torts (17th ed. 1995) Trespass, ¶ 13-159, p. 703, italics added; see Fleming, Law of Torts (9th ed.1998) Intentional Interference with Chattels, pp. 58-59 [questioning rule, but suggesting damage "however slight," would suffice, and acknowledging mere use of another's goods sufficed].)

      67

      As indicated, some confusion in the cases and treatises disappears when the nature of the remedy is considered. We accept that "The plaintiff, in order to recover more than nominal damages, must prove the value of the property taken, or that he has sustained some special damage." (1 Waterman, Trespass (1875) Remedy for Wrongful Taking of Property, § 596, p. 617; see Lay v. Bayless (1867) 44 Tenn. 246, 247; Warner v. Capps (1881) 37 Ark. 32.) Intel seeks no damages.

      69

      Hamidi's conduct was trespassory. Even assuming Intel has not demonstrated sufficient "harm" to trigger entitlement to nominal damages for past breaches of decorum by Hamidi, it showed he was disrupting its business by using its property and therefore is entitled to injunctive relief based on a theory of trespass to chattels. Hamidi acknowledges Intel's right to self help and urges Intel could take further steps to fend off his emails. He has shown he will try to evade Intel's security. We conceive of no public benefit from this wasteful cat-and-mouse game which justifies depriving Intel of an injunction. (Cf. America Online, Inc. v. Nat. Health Care Discount, Inc. (N.D.Iowa 2000) 121 F.Supp.2d 1255, 1259-1260 [detailing ongoing technological struggle between spammers and system operators].) Even where a company cannot precisely measure the harm caused by an unwelcome intrusion, the fact the intrusion occurs supports a claim for trespass to chattels. (See Register.com, Inc. v. Verio, Inc. (S.D.N.Y.2000) 126 F.Supp.2d 238, 249-250 [applying New York law, based on the Restatement, "evidence of mere possessory interference is sufficient to demonstrate the quantum of harm necessary to establish a claim for trespass to chattels"].)

      71

      Some commentators espouse the view that "cyberspace," as they term it, is necessarily free and open, minimizing the harm caused to Intel's business. (E.g., Comment, Developments—the Law of Cyberspace (1999) 112 Harv.L.Rev. 1574, 1633, fn. 137.) And Amicus ACLU urges "Harm flowing from the content of the 250*250 communication may not form the basis for an action for trespass to chattel." But Intel proved more than its displeasure with Hamidi's message, it showed it was hurt by the loss of productivity caused by the thousands of employees distracted from their work and by the time its security department spent trying to halt the distractions after Hamidi refused to respect Intel's request to stop invading its internal, proprietary e-mail system by sending unwanted e-mails to thousands of Intel's employees on the system. (See Hotmail Corporation v. Van$ Money Pie, Inc. (N.D.Cal.1998) 47 U.S.P.Q.2d (BNA 1020, 1025, ¶ 39, 1998 WL 388389, at p. *7 (Hotmail) [trespass caused "added costs for personnel"].)

      73

      "`Intermeddling' means intentionally bringing about a physical contact with the chattel." (Rest.2d Torts, § 217, com. e, p. 419.) "Electronic signals generated and sent by computer have been held to be sufficiently physically tangible to support a trespass cause of action. [Citations.] It is undisputed that plaintiff has a possessory interest in its computer systems. Further, defendants' contact with plaintiffs computers is clearly intentional. Although electronic messages may travel through the Internet over various routes, the messages are affirmatively directed to their destination ." (CompuServe Inc. v. Cyber Promotions Inc. (S.D.Ohio 1997) 962 F.Supp. 1015, 1021 (CompuServe).) "[A]ny value CompuServe realizes from its computer equipment is wholly derived from the extent to which that equipment can service its subscriber base.... To the extent that defendants' multitudinous electronic mailings demand the disk space and drain the processing power of plaintiffs computer equipment, those resources are not available to serve CompuServe subscribers. Therefore, the value of that equipment to CompuServe is diminished even though it is not physically damaged by defendants' conduct." (Id. at p. 1022.)

      75

      Amicus ACLU seeks to distinguish CompuServe on the ground the conduct "placed `a tremendous burden' on CompuServe's equipment thus depriving Compu-Serve of the full use of its equipment." Elsewhere in its brief, ACLU states Hamidi did not send "a large number of e-mails. All in all, he sent a total of only six e-mails over a period spanning close to two years." Similarly, Amicus EFF states: "Assuming the veracity of Intel's allegations, on six occasions over a nearly two-year period, many Intel employees simply had one additional e-mail from Mr. Hamidi sitting in their in boxes when they came to work in the morning. This hardly constitutes physical disruption to Intel's computer system." Amici discount disruption to Intel's business system, inasmuch as the thousands of employees had to confront, read, and delete the messages even if only to tell Hamidi to send them no more, as several hundred did.

      77

      EFF states if such loss of productivity "is the applicable standard [of harm], then every personal e-mail that an employee reads at work could constitute a trespass." The answer is, where the employer has told the sender the entry is unwanted and the sender persists, the employer's petition for redress is proper. Strangely, EFF, purporting to laud the "freedom" of the Internet, emphasizes Intel allows its employees reasonable personal use of Intel's equipment for sending and receiving personal e-mail. Such tolerance by employers would vanish if they had no way to limit such personal usage of company equipment.

      79

      CompuServe relied in part on Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 54 Cal.Rptr.2d 468 (Thrifty-Tel). Thrifty-Tel held the unauthorized use of telephone access numbers, which "overburdened 251*251 the system, denying some subscribers access," (p. 1564, 54 Cal.Rptr.2d 468) was sufficient to support liability for actual monetary damages. The case did not state or imply that such an extreme effect was required to establish the tort. Thrifty-Tel noted: "At early common law, trespass required a physical touching of another's chattel or entry onto another's land. The modern rule recognizes an indirect touching or entry; e.g., dust particles from a cement plant that migrate onto another's real and personal property may give rise to trespass. [Citing, inter alia, Wilson v. Interlake Steel Co. (1982) 32 Cal.3d 229, 185 Cal.Rptr. 280, 649 P.2d 922 (Wilson).] But the requirement of a tangible [trespass] has been relaxed almost to the point of being discarded. Thus, some courts have held that microscopic particles [citation] or smoke [citation] may give rise to trespass. And the California Supreme Court has intimated migrating intangibles (e.g., sound waves) may result in a trespass, provided they do not simply impede an owner's use or enjoyment of property, but cause damage. [Citing Wilson.] In our view, the electronic signals generated by the Bezenek boys' activities were sufficiently tangible to support a trespass cause of action." (46 Cal. App.4th at p. 1566, fn. 6, 54 Cal.Rptr.2d 468.) We agree.

      81

      Amicus EFF suggests Thrifty-Tel, supra, 46 Cal.App.4th 1559, 54 Cal.Rptr.2d 468 is based on the view "physical damages or physical disruption, even if temporary," "gives the `electronic signal' a sufficiently tangible quality to suppoit a cause of action for trespass," and Intel has not shown Hamidi's e-mails caused physical disruption. This is not so for two reasons. First, the footnote just quoted makes it plain that the electronic signal is "sufficiently tangible to support a trespass cause of action." The tangibility of the contact is not dependent on the harm caused. Second, Hamidi's e-mails caused disruption to Intel's workers, who were drawn away from their jobs to deal with the messages. If EFF is saying Hamidi can flood Intel's system to the penultimate extent before causing a computer crash, we disagree.

      83

      Hamidi insists this view of the Thrifty-Tel decision (supra, 46 Cal.App.4th 1559, 54 Cal.Rptr.2d 468) has been undermined by a subsequent California Supreme Court case, San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 55 Cal.Rptr.2d 724, 920 P.2d 669 (San Diego Gas). We disagree. San Diego Gas held a civil action claiming damages from electromagnetic radiation emanating from power lines would not lie, as such a suit would trench on the jurisdiction of the Public Utilities Commission. The plaintiffs effectively abandoned their claim of personal injury, based on a fear of cancer, but pursued a trespass claim. (Id. at p. 935, 55 Cal.Rptr.2d 724, 920 P.2d 669.) The court reiterated the rule stated by the late Justice Frank K. Richardson, as follows: "`Noise alone, without damage to the property, will not support a tort action for trespass. Recovery allowed in prior trespass actions predicated upon noise, gas emissions, or vibration intrusions has, in each instance, been predicated upon the deposit of particulate matter upon the plaintiffs' property or on actual physical damage thereto. [Citations.] [¶] All intangible intrusions, such as noise, odor, or light alone, are dealt with as nuisance cases, not trespass. [Citations.] [¶] Succinctly stated, the rule is that actionable trespass may not be predicated upon nondamaging noise, odor, or light intrusion. ...'" (Id. at p. 936, 55 Cal.Rptr.2d 724, 920 P.2d 669, quoting Wilson, supra, 32 Cal.3d 229, 185 Cal.Rptr. 280, 649 P.2d 922.) Wilson and San Diego Gas involved claims of damage to realty, not chattels. Most importantly, San Diego Gas, quoting 252*252 from Wilson, spoke of "nondamaging" intrusions. In other words, it did not hold that the electromagnetic waves did not contact the land. Cases are not authority for points not considered. (Hart v. Burnett (1860) 15 Cal. 530, 598.)

      85

      In America Online, Inc. v. IMS (E.D.Va.1998) 24 F.Supp.2d 548, IMS "sent unauthorized bulk e-mail advertisements (`spam') to AOL subscribers," even after AOL (America Online) told IMS to stop. (Id. at p. 549.) Applying the common law of Virginia, the court granted summary judgment to AOL on its claim of trespass to chattels. The court relied in part on CompuServe to conclude AOL was harmed by the time spent processing the unwanted e-mail, and the burden to the computer equipment it caused. (Id. at p. 550; accord America Online, Inc. v. GreatDeals.Net (E.D.Va.1999) 49 F.Supp.2d 851, 864 .) In America Online, Inc. v. LCGM, Inc. (E.D.Va.1998) 46 F.Supp.2d 444, another judge of the same court held (at page 452): "The transmission of electrical signals through a computer network is sufficiently `physical' contact to constitute a trespass to property."

      87

      Quite recently, a California federal court reached a similar conclusion in eBay Inc. v. Bidder's Edge, Inc. (N.D.Cal.2000) 100 F.Supp.2d 1058, 1071: "Even if, as BE argues, its searches use only a small amount of eBay's computer system capacity, BE has nonetheless deprived eBay of the ability to use that portion of its personal property for its own purposes. The law recognizes no such right to use another's personal property."

      89

      Hamidi and EFF ask, if unwanted email can constitute a trespass, why isn't unwanted first-class mail a trespass? "`[T]he short, though regular journey from mailbox to trash can ... is an acceptable burden, at least as far as the Constitution is concerned.'" (Bolger v. Youngs Drug Products Corp. (1983) 463 U.S. 60, 72, 103 S.Ct. 2875, 2883, 77 L.Ed.2d 469, 481 [held, law against use of mail for advertising contraceptives invalid].) The issue is one of degree. As Hamidi impliedly concedes, he could not lawfully cause Intel's computers to crash, or overwhelm the system so that Intel's employees were unable to use the computer system. (See Hotmail, supra, 47 U.S.P.Q.2d (BNA) at p. 1025, ¶ 39, 1998 WL 388389, at p. *7 [threat to "fill[ ] up Hotmail's computer storage space and ... damage Hotmail's ability to service its legitimate customers"].) Nor could a person send thousands of unwanted letters to a company, nor make thousands of unwelcome telephone calls. (See Rowan v. United States Post Office (1970) 397 U.S. 728, 736-737, 90 S.Ct. 1484, 1490-1491, 25 L.Ed.2d 736, 743 [upholding statute allowing blocking of mail, "Everyman's mail today is made up overwhelmingly of material he did not seek from persons he does not know"; "To hold less would tend to license a form of trespass"].)

      91

      At oral argument counsel referred to Business and Professions Code section 17538.4, which prohibits entities from barraging a person or company with unwanted commercial e-mails. The statute shows the Legislature recognizes the distraction and harm caused by unwanted electronic communications. Nothing in the statute suggests any intent to eliminate the application of common law remedies, such as trespass to chattels, to electronic communications, nor to limit common law remedies to cases of commercial speech.

      93

      We conclude the summary judgment moving papers demonstrated Intel's entitlement to an injunction based on a theory of trespass to chattels.

      96
      II. The Injunction Comports with the Federal Constitution
      98

      Hamidi and Amici insist the injunction runs afoul of the First Amendment. 253*253 In like manner as the First Amendment trumps a state's power to make and enforce defamation torts (e.g., New York Times v. Sullivan (1964) 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (Sullivan)) they urge it governs a state's power to enjoin emails. This lawsuit does not implicate federal constitutional rights, for lack of state action.

      100

      Sullivan famously held "actual malice" was an element of the tort of libel—as a matter of federal constitutional law—in a case where a political figure sued a newspaper. Sullivan pits common law rights protecting reputation against the constitutional right of a newspaper to publish. In a trespass case, however, the speaker's rights are pitted against a property owner's rights—of at least equal constitutional force—to wisely govern his lands (or, in this case, his chattels). The equation is different. (376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686.)

      102

      "[T]he First Amendment protects individuals only against government, not private, infringements upon free speech rights." (George v. Pacific-CSC Work Furlough (9th Cir.1996) 91 F.3d 1227, 1229.) When individuals seek protection for expressive rights, the "courts must first determine whether it is indeed government action—state or federal—that the litigants are challenging." (Tribe, American Constitutional Law (2d ed. 1988) The Problem of State Action, § 18-1, p. 1688 (Tribe).) The case law is muddled. (See id., at p. 1690.) However, in some cases, including speech cases, a state-court decision in a suit between private litigants implicates federal concerns and "there seems little doubt that judges are government actors and that judicial remedies are state action." (Chemerinsky, State Action (1999) 618 PLI/Lit 183, 209 (Chemerinsky).)

      104

      Shelley v. Kraemer (1948) 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (Shelley), held judicial enforcement of racially restrictive real property covenants was state action. "[B]ut for the active intervention of the state courts, supported by the full panoply of state power, petitioners would have been free to occupy the properties in question without restraint." (Id. at p. 19, 68 S.Ct. at p. 844, 92 L.Ed at p. 1183.) The principle was applied to a speech case in Sullivan, which stated it "matters not that law has been applied in a civil action.... The test is not the form in which state power has been applied but, whatever the form, whether such power has in fact been exercised." (376 U.S. at p. 265, 84 S.Ct. at p. 718, 11 L.Ed.2d at p. 697.)

      106

      But the Shelley reasoning (334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161) "consistently applied, would require individuals to conform their private agreements to constitutional standards whenever, as almost always, the individuals might later seek the security of potential judicial enforcement." (Tribe, supra, § 18-1 at p. 1697.) Such application would erode the distinction between public and private action. Thus, "Shelley remains controversial because ultimately everything can be made state action under it. If any decision by a state court represents state action, then ultimately all private actions must comply with the Constitution.... All private [suits for] violations of rights exist because state law allows them. It is difficult to imagine anything that cannot potentially be transformed into state action under this reasoning, [¶] The Court, of course, never has taken Shelley this far, but nor has it articulated any clear limiting principles." (Chemerinsky, supra, 618 PLI/Lit at p. 210.)

      108

      We need not delve too far into the state action morass. Judicial enforcement of neutral trespass laws has been held not to 254*254 constitute state action. "[T]his Court has never held that a trespasser or an uninvited guest may exercise general rights of free speech on property privately owned and used nondiscriminatorily for private purposes only." (Lloyd v. Tanner (1972) 407 U.S. 551, 568, 92 S.Ct. 2219, 2228, 33 L.Ed.2d 131, 142 (Lloyd).) Lloyd vacated an injunction permitting war protesters to exercise speech rights at a private shopping center. The court rejected the assertion that private property took on public character because it had characteristics "functionally similar to facilities customarily provided by municipalities." (Id. at p. 569, 92 S.Ct. at p. 2229, 33 L.Ed.2d at p. 142.) This argument "reaches too far. The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use." (Id. at p. 569, 92 S.Ct. at p. 2229, 33 L.Ed.2d at p. 143.)

      110

      Amicus ACLU suggests Lloyd, supra, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131, should be distinguished because the case declines rather than grants an injunction. But the court's act of declining an injunction to enable protestors to speak is functionally the same as granting an injunction preventing speech. (See Chemerinsky, supra, 618 PLI/Lit at p. 210 ["If the court dismisses the case because the state law does not forbid the violation, there is state action sustaining the infringement of the right, just as there would have been state action had the court dismissed the case in Shelley, [supra, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161]. All private violations of rights exist because state law allows them"]; see also Strickland, State Action Doctrine and the Rehnquist Court (1991) 18 Hastings Const. L.Q. 587, 606-607 ["Just as the creation and judicial application of law to grant judicial relief in civil litigation is state action, the state's decision to deny judicial or other intervention in private affairs is state action.... [T]he decision to deny relief, which is made by the state's official policymaking bodies, unquestionably is state action"].) Accordingly, the ability to use state trespass laws to enforce private property rights ... is irrelevant to the state action requirement of the Fourteenth Amendment. (International Socy. for Krishna Consciousness, Inc. v. Reber (C.D.Cal.1978) 454 F.Supp. 1385, 1388-1389; see Cape Cod Nursing Home v. Rambling Rose Rest Home (1st Cir.1981) 667 F.2d 238, 243 [police assistance in removing unwelcome guests does not create state action], followed by Radich v. Goode (3d Cir.1989) 886 F.2d 1391, 1398-1399.) As exclusivity is an attribute of private property, the owner may use the neutral trespass laws to enforce his decision so long as he has no other connection to state action. (2 Rotunda Nowak, Treatise on Constitutional Law (3d ed. 1999) State Action, 16.3, p. 786; cf. Comment, Maintaining Racial Segregation through State Criminal Trespass Actions (1963) 77 Harv. L.Rev. 127.)

      112

      Amicus ACLU cites cases which confer First Amendment protection in private tort actions, but they differ from the present case in that Hamidi was enjoined from trespassing onto Intels private property. (NAACP v. Claiborne Hardware Co. (1982) 458 U.S. 886, 102 S.Ct. 3409, 73 L.Ed.2d 1215 [boycott activity]; Organization for a Better Austin v. Keefe (1971) 402 U.S. 415, 91 S.Ct. 1575/ 29 L.Ed.2d 1 (Keefe) [leafleting]; Blatty v. New York Times (1986) 42 Cal.3d 1033, 232 Cal.Rptr. 542, 728 P.2d 1177 [newspapers bestseller list]; Paradise Hills Associates v. Procel (1991) 235 Cal.App.3d 1528, 1 Cal.Rptr.2d 514 (Paradise Hills).) None of these cases hold the First Amendment permits trespassing. Paradise Hills reversed an injunction preventing a disgruntled homebuyer from protesting, but explains, had 255*255 she entered private property not open for public access, an injunction against such conduct would be appropriate. (Id. at p. 1547, 1 Cal.Rptr.2d 514.)

      114

      Cohen v. Cowles Media Co. (1991) 501 U.S. 663, 111 S.Ct. 2513, 115 L.Ed.2d 586, cited by Hamidi, involved a newspapers breach of promise to a source; liability was not precluded by the First Amendment. The case did not address trespass.

      116

      Recent cases involving unwanted commercial e-mail support our view. In Cyber Promotions v. American Online, Inc. (E.D.Pa.1996) 948 F.Supp. 436 (Cyber Promotions), the court found no state action when an online company obtained an injunction to prevent another company from sending commercial e-mail to its members. The court rejected the e-mail sender's position that "`the Court's participation with the litigant in issuing or enforcing an order which impinges on another's First Amendment rights'" amounted to state action. (Id. at pp. 444-45.) CompuServe, which upheld an injunction against a company sending unsolicited emails, held squarely: "the mere judicial enforcement of neutral trespass laws by the private owner of property does not alone render it a state actor." (CompuServe, supra, 962 F.Supp. at p. 1026, cited on this point with approval Golden Gateway Center v. Golden Gateway Tenants Assn. (2001) 26 Cal.4th 1013, 1034 & fn. 14, 111 Cal.Rptr.2d 336, 29 P.3d 797 (plu.opn.) ["judicial enforcement of injunctive relief does not, by itself, constitute state action"] (Golden Gateway).) We agree.

      118

      At oral argument counsel asserted the California Supreme Court has held any judicial tort relief implicating expressive rights constitutes state action, relying on the following passage in Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092 at page 1114, 252 Cal.Rptr. 122, 762 P.2d 46: "While judicial sanctioning of tort recovery constitutes state action sufficient to invoke the same constitutional protections applicable to statutes and other legislative actions [citing Sullivan], religious groups are not immune from all tort liability." That case involved claims by former cult members alleging that a religious group defrauded and falsely imprisoned them. The point of the passage just quoted was to emphasize that not all activities by religious groups are insulated from tort liability. Counsel's interpretation of the passage is tenable only if the language is divorced from its context.

      120

      For lack of state action the federal constitution is not implicated herein. Intel has the right to exclude others from speaking on its property. Intel is not required to exercise its right in a "content-neutral" fashion. Content discrimination is part of a private property-owner's bundle of rights. Intel does not welcome Hamidi.

      123
      III. The Injunction Comports with the State Constitution
      125

      Hamidi contends his right to send e-mail to Intel employees is protected by the California analog to the First Amendment, which provides "Every person may freely speak, write or publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." (Cal. Const., art. I, 2, subd. (a).) This provision is "more definitive and inclusive than the First Amendment]" (Wilson v. Superior Court (1975) 13 Cal.3d 652, 658, 119 Cal.Rptr. 468, 532 P.2d 116.)

      127

      In a controversial 4-3 decision, over a vigorous dissent, the California Supreme Court held the free speech rights of students obtaining petition signatures trumped the right of the owner of a shopping center to exclude them. (Robins v. Pruneyard Shopping Center (1979) 23 256*256 Cal.3d 899, 153 Cal.Rptr. 854, 592 P.2d 341 (Robins), affd. sub nom. PruneYard Shopping Center v. Robins (1980) 447 U.S. 74, 100 S.Ct. 2035, 64 L.Ed.2d 741.) Robins concluded the shopping center served as a "functional equivalent for the suburban counterpart of the traditional town center business block, where historically the publics First Amendment activity was exercised and its right to do so scrupulously guarded." (Planned Parenthood v. Wilson (1991) 234 Cal.App.3d 1662, 1670, 286 Cal.Rptr. 427 (Planned Parenthood).) Robins rejected contrary authority construing the First Amendment on similar facts. (Lloyd, supra, 407 U.S. 551, 92 S.Ct. 2219, 33 L.Ed.2d 131.) Even under Robins, a large shopping center may impose time, place and manner restrictions. (Union of Needletrades, etc. Employees v. Superior Court (1997) 56 Cal.App.4th 996, 1009-1010, 65 Cal.Rptr.2d 838.)

      129

      But, "[b]y no means do we imply that those who wish to disseminate ideas have free rein.... `It bears repeated emphasis that we do not have under consideration the property or privacy rights of an individual homeowner or the proprietor of a modest retail establishment.'" (Robins, supra, 23 Cal.3d at p. 910, 153 Cal.Rptr. 854, 592 P.2d 341.) Robins only diminishes a private property owners right to exclude others where the property "is generally open to the public and functions as the equivalent of a traditional public forum[.]" (Allred v. Harris (1993) 14 Cal.App.4th 1386, 1390, 18 Cal.Rptr.2d 530.)

      131

      The California Supreme Court recently reaffirmed the Robins holding. In Golden Gateway, supra, 26 Cal.4th 1013, 111 Cal.Rptr.2d 336, 29 P.3d 797, a majority concluded a large residential apartment complex could prevent its tenants from distributing leaflets within the complex. The plurality opinion of three justices would import the "state action" limitation into lawsuits based on the California Constitution's analog to the First Amendment. Three justices disagreed with this view and the Chief Justice declined to resolve the point. For our purposes we need not enter into that debate. Instead, we distill from Golden Gateway a holding which reaffirms the test employed in Robins. According to the plurality, "the actions of a private property owner constitute state action for purposes of California's free speech clause only if the property is freely and openly accessible to the public." (26 Cal.4th at p. 1033, 111 Cal.Rptr.2d 336, 29 P.3d 797.) Because the plurality concluded the complex was not freely and openly accessible to the public, it found no state action. The Chief Justice's opinion proceeds directly to the question whether the complex was "freely open" to the public and concluded it was not. (Id. at p. 1036, 111 Cal.Rptr.2d 336, 29 P.3d 797.) We perceive no semantic difference between "freely open" and "freely and openly accessible" to the public. Therefore actions to halt expressive activity on one's private property do not contravene the California Constitution unless the property is freely open to the public.

      133

      We recognize the open character of the Internet. "Although in its infancy, the Internet has already become a popular place of public discussion. Individuals from every part of American society visit and exchange ideas with others through various forums within cyberspace. The debate occurring in these forums in many ways embodies the Court's ideal of `uninhibited, robust, and wide-open' discussion." (Goldstone, A Funny Thing Happened on the Way to the Cyber Forum: Public v. Private in Cyberspace Speech (1998) 69 U. Colo. L.Rev. 1, 3.)

      135

      Private e-mail servers differ from the Internet; they are not traditional public 257*257 forums. (Cyber Promotions, supra, 948 F.Supp. at p. 446.) Nor is a private company which chooses to use e-mail made a public forum.

      137

      Although Intel is a large company, it is not like a Pruneyard Shopping Center, in that it is not a place where the public gathers to engage in expressive activity such as gathering signatures to petition the government, nor is its e-mail system so used. The Intel e-mail system is private property used for business purposes. Intel's system is not transformed into a public forum merely because it permits some personal use by employees. (See Perry Education Association v. Perry Local Educators Assn. (1983) 460 U.S. 37, 47, 103 S.Ct. 948, 956, 74 L.Ed.2d 794, 806 [limited access to outside organizations does not transform school mailbox system into a public forum].) Intel invites the public to use its e-mail system for and only for business purposes.

      139

      Hamidi insists Intel's act of connecting itself (and thus, its employees) to the Internet and giving its employees e-mail addresses makes Intel's e-mails a public forum. By the same reasoning, connecting one's realty to the general system of roads invites demonstrators to use the property as a public forum and buying a telephone is an invitation to receive thousands of unwanted calls. That is not the law. (CompuServe, supra, 962 F.Supp. at p. 1024; Cyber Promotions, supra, 948 F.Supp. at p. 442.) Intel is as much entitled to control its e-mail system as it is to guard its factories and hallways. No citizen has the general right to enter a private business and pester an employee trying to work. It may be a few unwanted e-mails would not be sufficient to trigger a court's equity powers. Indeed, such may be an inevitable, though regrettable, fact of modern life, like unwelcome junk mail and telephone solicitations. (See Cyber Promotions, Inc. v. Apex Global Information Svcs., Inc. (E.D.Pa.1997) 1997 WL 634384, p. *3 [bulk e-mail "annoying and intrusive"].) However, the massive size of Hamidi's campaign caused Intel much trouble, not the least of which was caused by the lost time of each employee who had to read or delete an unwanted message, either out of fear of a virus or a lack of desire to communicate with Hamidi. As we pointed out in another case, "When a camel's back is broken we need not weigh each straw in its load to see which one could have done the deed." (Woodland Joint Unified School Dist. v. Commission on Professional Competence (1992) 2 Cal. App.4th 1429, 1457, 4 Cal.Rptr.2d 227.)

      141

      Finally, Hamidi has many available alternate ways to reach his target audience. (Cf. Chico Feminist Women's Health Center v. Scully (1989) 208 Cal.App.3d 230, 243-248, 256 Cal.Rptr. 194. Cf. also Golden Gateway, supra, 26 Cal. 4th at p. 1050, 111 Cal.Rptr.2d 336, 29 P.3d 797 (dis.opn.) [concluding use of mail and off-site distribution were not feasible alternatives to door-to-door leafleting].)

      143

      We may safely assume most, if not all, Intel employees can reach Hamidi's website, either from their homes or from libraries or cafés which provide Internet access. Hamidi concedes the Internet has become widely accessible and affordable, at least in the United States. Employees who cannot get on the Internet can correspond with Hamidi about issues of mutual concern. According to Hamidi's website, [as of Dec. 10, 2001], he has delivered many thousands of printed "e-mails" to Intel's headquarters by horse and buggy, both to communicate with its workers within the terms of the injunction, and to publicize this lawsuit. (See www.intelhamidi.com/seconddelivery.htm [as of Dec. 10, 2001]. See also Gaum, E-Mail Delivered by Horse-Mail, 258*258 S.F. Chron. (Sep. 29, 1999) p. B-2 ["Mounted as an outrider and dressed in a red shirt and star-spangled kerchief, Hamidi handed 16 boxes of messages to Intel security officials"].) Hamidi may freely exchange ideas with Intel or Intel workers. This highlights a critical factual misstatement in Hamidi's brief, that he has been enjoined "from sending e-mail over the internet to Intel employees." The injunction prohibits Hamidi "from sending unsolicited e-mails to addresses on INTEL's computer systems." Hamidi is free to send mail—"e" or otherwise—to the homes of Intel employees, and is free to send them regular mail. The injunction simply requires that Hamidi air his views without using Intel's private property.

      145

      The Chief Justice has cautioned that imposing a state action limitation on the free expression provisions of the California Constitution could allow a private actor "to censor or undermine what might be viewed as another individual's `core' free speech rights." (Golden Gateway, supra, 26 Cal.4th at p. 1042, 111 Cal.Rptr.2d 336, 29 P.3d 797.) He poses the example of an employer forbidding employees from displaying union bumper stickers in the employer's parking lot. (Ibid.)

      147

      That is not this case. Although Intel's workers may communicate with each other and outsiders to air grievances, they do not have a "core" right to spend company time doing so, such as by laying aside their work in order to respond to Hamidi's emails. Tellingly, ACLU views the e-mails to be in the control of the employees: "The decision whether or not to continue receiving Hamidi's messages should be that of the employee, not Intel." Hamidi states "Hamidi's e-mails may have been uninvited by Intel management, but they were not directed to Intel management." Intel owns the e-mail system it provides to its workers as much as it owns the telephones and manufacturing equipment it provides. The ACLU's position would result in employers denying all personal access to the Internet, which is not a sensible outcome.

      149

      We conclude the injunction does not violate the California Constitution.

      152
      DISPOSITION
      154

      The judgment is affirmed.

      156

      I concur: SCOTLAND, P.J.

      158

      Dissenting Opinion of KOLKEY, J.

      160

      I respectfully dissent. The majority would apply the tort of trespass to chattel to the transmittal of unsolicited electronic mail that causes no harm to the private computer system that receives it by modifying the tort to dispense with any need for injury, or by deeming the mere reading of an unsolicited e-mail to constitute the requisite injury. (Maj. opn. at pp. 249-250.)

      162

      While common law doctrines do evolve to adapt to new circumstances, it is not too much to ask that trespass to chattel continue to require some injury to the chattel (or at least to the possessory interest in the chattel) in order to maintain the action. The only injury claimed here—the time spent reading an e-mail—goes beyond any injury associated with the chattel or within the tort's zone of protection. Although I understand Intel's desire to end what it deems harassment by a disgruntled former employee, "[w]e must not throw to the winds the advantages of consistency and uniformity to do justice in the instance. We must keep within those interstitial limits which precedent and custom and the long and silent and almost indefinable practice of other judges through centuries of the common law have set to judge-made innovations." (Cardozo, The Nature of the Judicial Process (1921), p. 103, fn. omitted.)

      164

      259*259 The other appellate decisions that have applied trespass to chattel to computer systems have done so only where the transmittal of the unsolicited bulk e-mail burdened the computer equipment, thereby interfering with its operation and diminishing the chattel's value (e.g., America Online, Inc. v. IMS (E.D.Va.1998) 24 F.Supp.2d 548, 550-551; America Online, Inc. v. LCGM, Inc. (E.D.Va.1998) 46 F.Supp.2d 444, 449; CompuServe, Inc. v. Cyber Promotions, Inc. (S.D.Ohio 1997) 962 F.Supp. 1015), or where the unauthorized search of, and retrieval of information from, another party's database reduced the computer system's capacity, slowing response times and reducing system performance (Register.com, Inc. v. Verio, Inc. (S.D.N.Y.2000) 126 F.Supp.2d 238, 250; eBay, Inc. v. Bidder's Edge, Inc. (N.D.Cal.2000) 100 F.Supp.2d 1058, 1066, 1071). But no case has held that the requisite injury for trespass to chattel can consist of the mere receipt of an e-mail, the only damage from which consists of the time consumed to read it—assuming the recipient chooses to do so. To apply this tort to electronic signals that do not damage or interfere with the value or operation of the chattel would expand the tort of trespass to chattel in untold ways and to unanticipated circumstances.

      167
      A
      169

      California cases have consistently required actual injury as an element of the tort of trespass to chattel. (Zaslow v. Kroenert (1946) 29 Cal.2d 541, 551, 176 P.2d 1; Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1566, 54 Cal.Rptr.2d 468; Itano v. Colonial Yacht Anchorage (1968) 267 Cal.App.2d 84, 90, 72 Cal.Rptr. 823.)

      171

      As most recently defined by the Court of Appeal in Thrifty-Tel, Inc. v. Bezenek, supra, "[t]respass to chattel, although seldom employed as a tort theory in California ..., lies where an intentional interference with the possession of personal property has proximately caused injury." (Thrifty-Tel, Inc. v. Bezenek, supra, 46 Cal.App.4th at p. 1566, 54 Cal.Rptr.2d 468, fn. omitted.) This definition was derived from Itano v. Colonial Yacht Anchorage, supra, 267 Cal.App.2d at page 90, 72 Cal.Rptr. 823, which, in turn, relied on Prosser's treatise on torts (Prosser) and the California Supreme Court's decisions in Jordan v. Talbot (1961) 55 Cal.2d 597, 610, 12 Cal.Rptr. 488, 361 P.2d 20, and Zaslow v. Kroenert, supra, 29 Cal.2d at page 551, 176 P.2d 1, which themselves relied on Prosser. Accordingly, I turn to Prosser to clarify the elements of the tort.

      173

      The present edition of Prosser cautions that trespass to chattel requires actual damage before the trespass is actionable: "Another departure from the original rule of the old writ of trespass concerns the necessity of some actual damage to the chattel before the action can be maintained. Where the defendant merely interferes without doing any harm—as where, for example, he merely lays hands upon the plaintiffs horse, or sits in his car—there has been a division of opinion among the writers, and a surprising dearth of authority.... Such scanty authority as there is, however, has considered that the dignitary interest in the violability of chattels, unlike that as to land, is not sufficiently important to require any greater defense than the privilege of using reasonable force when necessary to protect them. Accordingly, it has been held that nominal damages will not be awarded, and that in the absence of any actual damage the action will not lie. This must be qualified, however, to the extent that any loss of possession by the plaintiff is regarded as necessarily a loss of something of value, even if only for a brief interval—so that 260*260 wherever there is found to be dispossession, as in the case of seizure of goods on execution, the requirement of actual damage is satisfied...." (Prosser and Keeton on Torts (5th ed.1984) § 14, p. 87, fns. omitted.)

      175

      The Restatement Second of Torts agrees on the need for actual damage for the tort to lie: "The interest of a possessor of a chattel in its inviolability, unlike the similar interest of a possessor of land, is not given legal protection by an action for nominal damages for harmless intermeddlings with the chattel. In order that an actor who interferes with another's chattel may be liable, his conduct must affect some other and more important interest of the possessor. Therefore, one who intentionally intermeddles with another's chattel is subject to liability only if his intermeddling is harmful to the possessor's materially valuable interest in the physical condition, quality, or value of the chattel, or if the possessor is deprived of the use of the chattel for a substantial time, or some other legally protected interest of the possessor is affected as stated in Clause (c)...." (Rest.2d Torts, § 218, com. e, pp. 421-122.)[1]

      177

      For that reason, where a child climbs on the back of another's dog and pulls its ears, but no harm is done to the dog or to the legally protected interest of the owner, the child is not liable. (Glidden v. Szybiak (1949) 63 A.2d 233, 95 N.H. 318; Rest.2d Torts, § 218, com. e, illus. 2, p. 422.) On the other hand, the intermeddling is actionable where the trespass impairs the value of the chattel, even if its physical condition is unaffected. (Rest.2d Torts, § 218, com. h, p. 422.) For instance, "the use of a toothbrush by someone else ... lead[s] a person of ordinary sensibilities to regard the article as utterly incapable of further use by him." (Ibid.)

      179

      The only possible exception to the requirement of actual injury is where there has been a loss of possession, which is viewed as a loss of something of value and thus actual damage: According to comment d of section 218 of the Restatement Second of Torts, "[w]here the trespass to the chattel is a dispossession, the action will lie although there has been no impairment of the condition, quality, or value of the chattel, and no other harm to any interest of the possessor." (Rest.2d Torts, § 218, com. d, p. 421.) This conforms with the observation in Prosser that "loss of possession by the plaintiff is regarded as necessarily a loss of something of value, even if only for a brief interval—so that wherever there is found to be dispossession ..., the requirement of actual damage is satisfied." (Prosser and Keeton on Torts, supra, § 14, p. 87, fns. omitted.)

      181

      Accordingly, in conformity with the California cases, section 218 of the Restatement Second of Torts requires actual injury in order to state a cause of action for trespass to chattel—unless there is a loss of possession, which is deemed to constitute actual damage: "One who commits a trespass to a chattel is subject to liability to the possessor of the chattel if, but only if, [¶] (a) he dispossesses the other of the chattel, or [¶] (b) the chattel is impaired as to its condition, quality, or value, or [¶] (c) the possessor is deprived of the use of the chattel for a substantial time, or [¶] (d) bodily harm is caused to the possessor, or harm is caused to some person or thing in which the possessor has a legally protected interest." (Rest.2d Torts, § 218, p. 420.)

      184
      B
      186

      In this case, however, Intel was not dispossessed, even temporarily, of its email system by reason of receipt of e-mails; 261*261 the e-mail system was not impaired as to its condition, quality, or value; and no actual harm was caused to a person or thing in which Intel had a legally protected interest.

      188

      The majority nonetheless suggests that "[e]ven assuming Intel has not demonstrated sufficient `harm' to trigger entitlement to nominal damages ... it showed [the defendant] was disrupting its business by using its property and therefore is entitled to injunctive relief based on a theory of trespass to chattels." (Maj. opn. at p. 249.)

      190

      However, if the defendant's earlier transmittals of e-mail did not constitute harm, it is hard to understand what cognizable injury the injunction is designed to avoid. The fact the relief sought is injunctive does not excuse a showing of injury, whether actual or threatened. After all, injunctive relief requires a "showing that the defendant's wrongful act constitutes an actual or threatened injury to property or personal rights that cannot be compensated by an ordinary damage award." (5 Witkin, California Procedure (4th ed.1997) Pleading § 782, p. 239.) The majority therefore cannot avoid the element of injury by relying on the fact that injunctive relief is sought here.

      192

      Alternatively, the majority suggests that injury resulted from defendant's e-mails, because Intel "was hurt by the loss of productivity caused by the thousands of employees distracted from their work [by the e-mails] and by the time its security department spent trying to halt the distractions after [defendant] refused to respect Intel's request to stop ... sending unwanted e-mails." (Maj. opn. at p. 250.)

      194

      But considering first Intel's efforts to stop the e-mails, it is circular to premise the damage element of a tort solely upon the steps taken to prevent the damage. Injury can only be established by the completed tort's consequences, not by the cost of the steps taken to avoid the injury and prevent the tort; otherwise, we can create injury for every supposed tort.

      196

      Nor can a loss of employees' productivity (by having to read an unwanted e-mail on six different occasions over a nearly two-year period) qualify as injury of the type that gives rise to a trespass to chattel. If that is injury, then every unsolicited communication that does not further the business's objectives (including telephone calls) interferes with the chattel to which the communication is directed simply because it must be read or heard, distracting the recipient. "Damage" of this nature—the distraction of reading or listening to an unsolicited communication—is not within the scope of the injury against which the trespass-to-chattel tort protects, and indeed trivializes it. After all, "[t]he property interest protected by the old action of trespass was that of possession; and this has continued to affect the character of the action." (Prosser and Keeton on Torts, supra, § 14, p. 87.) Reading an e-mail transmitted to equipment designed to receive it, in and of itself, does not affect the possessory interest in the equipment.

      198

      Indeed, if a chattel's receipt of an electronic communication constitutes a trespass to that chattel, then not only are unsolicited telephone calls and faxes trespasses to chattel, but unwelcome radio waves and television signals also constitute a trespass to chattel every time the viewer inadvertently sees or hears the unwanted program.

      200

      At oral argument, Intel's counsel argued that the latter cases can be distinguished because Intel gave defendant notice of its objection before his final set of e-mails in September 1998. But such a notice could also be given to television and radio stations, 262*262 telephone callers, and correspondents. Under Intel's theory, even lovers' quarrels could turn into trespass suits by reason of the receipt of unsolicited letters or calls from the jilted lover. Imagine what happens after the angry lover tells her fiancé not to call again and violently hangs up the phone. Fifteen minutes later the phone rings. Her fiancé wishing to make up? No, trespass to chattel.

      202

      No case goes so far as to hold that reading an unsolicited message transmitted to a computer screen constitutes an injury that forms the basis for trespass to chattel. This case can be distinguished from cases like CompuServe Incorporated v. Cyber Promotions, Inc., supra, 962 F.Supp. at page 1022, America Online, Inc. v. IMS, supra, 24 F.Supp.2d 548, and America Online, Inc. v. LCGM, Inc., supra, 46 F.Supp.2d at page 449, where the district court found that unauthorized bulk e-mail advertisements (spam) to subscribers of an online service constituted trespass to chattels because the massive mailings "burdened [its] equipment" and diminished its good will and its possessory interest in its computer network. (America Online, Inc. v. IMS, supra, 24 F.Supp.2d at p. 550-551.) In CompuServe Incorporated v. Cyber Promotions, Inc., supra, 962 F.Supp. at page 1022, for instance, the court found that the defendants' "multitudinous electronic mailings demand[ed] the disk space and drain[ed] the processing power of plaintiff's computer equipment, [making] those resources ... not available to serve CompuServe subscribers" and led subscribers to terminate their accounts, harming Compu-Serve's business reputation and good will with its customers. (962 F.Supp. at pp. 1022, 1023.) Clearly, the defendants' bulk mailings injured the operation and value of the system.

      204

      Likewise, in Register.com, Inc. v. Verio, Inc., supra, 126 F.Supp.2d 238, and eBay, Inc. v. Bidder's Edge, Inc., supra, 100 F.Supp.2d 1058, the unauthorized search of, and retrieval of information from, another party's database was deemed to constitute trespass to chattel because the actions reduced the computer's capacity, slowing response times and reducing system performance.

      206

      Similarly, in Thrifty-Tel, Inc. v. Bezenek, supra, 46 Cal.App.4th at pages 1564-1566, 54 Cal.Rptr.2d 468, the Court of Appeal found trespass to chattel where the perpetrators' computer program cracked the plaintiff telephone carrier's access and authorization codes, allowing long distance phone calls to be made without paying for them. That, too, impaired the operation and the value of the owner's possessory interest in the chattel.

      208

      In each of these cases, the chattel, or the possessory interest therein, was impaired as to its condition or value.[2]

      210

      In contrast, here, the record does not suggest any impairment of the chattel's condition or value, or of the possessory interest therein.

      212

      Indeed, the extension of the tort of trespass to chattel to the circumstances here has been condemned by the academic literature. (Burk, The Trouble with Trespass (2000) 4 J. Small & Emerging Bus. L. 27, 39 ["the elements of common law trespass to chattels fit poorly in the context of cyberspace, and so the courts have been able to apply this claim to the problem of spam only by virtue of creative tailoring"]; 263*263 Ballantine, Computer Network Trespasses: Solving New Problems with Old Solutions (2000) 57 Wash. & Lee L.Rev. 209, 248 ["Ultimately, failure to allege or to support a showing of actual harm should have precluded Intel from prevailing on a trespass to chattels theory"].)

      214

      Even in cases involving trespass to land, for which nominal damages may be sought (Polin v. Chung Cho (1970) 8 Cal.App.3d 673, 676, 87 Cal.Rptr. 591), "`the rule is that actionable trespass may not be predicated upon nondamaging noise, odor, or light intrusion....' [Citation.]" (San Diego Gas & Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 936, 55 Cal.Rptr.2d 724, 920 P.2d 669; emphasis added.) A fortiori, nondamaging electronic signals should not constitute trespass to chattel.

      216

      I acknowledge that the majority opinion contains a quote from an English treatise, Salmond and Heuston on the Law of Torts (21st ed. 1996) (Salmond), which states that "`trespass to chattels is actionable per se without any proof of actual damage,'" citing as examples the snatching of a customer's handbag for a few moments or the showing of a private letter to an unauthorized person. (Maj. opn. at p. 249, quoting Salmond, supra, § 6.2, p. 95.) But this proposition refers to the complete dispossession of chattel, which Prosser suggests satisfies the requirement of actual damage. (Prosser and Keeton on Torts, supra, § 14, p. 87.)

      218

      The majority also cites another English treatise, Clerk & Lindsell on Torts, that purportedly agrees with Salmond. But that treatise acknowledges that "[i]t has been judicially asserted that even an intentional interference without asportation is not actionable unless some harm ensues" and simply states that textbook writers argue to the contrary. (Clerk & Lindsell on Torts (17th ed. 1995) Trespass § 13-159, p. 703.).

      220

      To the extent that Salmond and Clerk & Lindsell state an unqualified view that actual damage is not required to state a cause of action for trespass to chattels, this is the minority view and has been questioned. (See I Harper, James, Gray, The Law of Torts, § 2.3, p. 2:14 [citing cases supporting the proposition that absent dispossession, "there must be some physical harm to the chattel or to its possessor" and calling into question the contrary position by Salmond].)

      222

      In conclusion, the overwhelming weight of authority is that trespass to chattel requires injury to the chattel or to the possessor's legally protected interest in the chattel. Opening and reading unsolicited e-mails is not a cognizable injury to the chattel or to the owner's possessory interest in it.[3]

      225
      C
      227

      One more issue remains to be addressed. If the transmittal of an unsolicited 264*264 e-mail that causes no injury to the condition, value, or operation of the chattel (or to the possessory interest therein) does not rise to the level of trespass to chattel, should the requirement of injury be relaxed to allow an injunction against unwanted e-mail?

      229

      While the common law can be adapted to new circumstances, it is not infinitely malleable. Relaxation of the injury requirement would not merely adapt the tort, but change its nature. After all, "[t]he property interest protected by the old action of trespass was that of possession; and this has continued to affect the character of the action." (Prosser and Keeton on Torts, supra, § 14, p. 87.) Dispensing with the requirement of injury to the value, operation, or condition of the chattel, or the possessory interest therein, would extend the tort's scope in a way that loses sight of its purpose.

      231

      "The reason that the tort of trespass to chattels requires some actual damage as a prima facie element, whereas damage is assumed where there is a trespass to real property, can be explained as follows: [¶] `The interest of a possessor of a chattel in its inviolability, unlike the similar interest of a possessor of land, is not given legal protection ... for harmless intermeddlings with the chattel. In order that an actor who interferes with another's chattel may be liable, his conduct must affect some other and more important interest of the possessor. Therefore, one who intentionally intermeddles with another's chattel is subject to liability only if his intermeddling is harmful to the possessor's materially valuable interest in the physical condition, quality, or value of the chattel, or if the possessor is deprived of the use of the chattel for a substantial time, or some other legally protected interest of the possessor is affected as stated in Clause (c). Sufficient legal protection of the possessor's interest in the mere inviolability of his chattel is afforded by his privilege to use reasonable force to protect his possession against even harmless interference.'" (CompuServe Incorporated v. Cyber Promotions, Inc., supra, 962 F.Supp. at p. 1023, citing Rest.2d Torts, § 218, com. e, original italics.)

      233

      The injury claimed here—the time spent reading an e-mail—goes beyond anything associated with the chattel or within the tort's zone of protection. Extension of the tort to protect against undesired communications, where neither the chattel nor the possessory interest therein is injured, transforms a tort meant to protect possessory interests into one that merely attacks speech. Regardless of whether restraining e-mails to a private company implicates First Amendment rights, such a metamorphosis of the tort is better suited for deliberate legislative action than judicial policymaking.

      235

      Indeed, the Legislature has enacted two statutes that restrict the e-mailing of unsolicited advertising materials (Bus. & Prof. Code, §§ 17538.4, 17538.45) and another that affords a civil remedy to those who suffer damage or loss from, inter alia, the unauthorized access to a computer system (Pen.Code, § 502, subd. (e)(1)). These statutory provisions and the Legislature's failure to extend these remedies to unsolicited e-mails in general suggests a deliberate decision by the Legislature not to reach the circumstances here. To be sure, common law claims can coexist with statutory enactments. Our Supreme Court has admonished that "statutes do not supplant the common law unless it appears that the Legislature intended to cover the entire subject" (Rojo v. Kliger (1990) 52 Cal.3d 65, 80, 276 Cal.Rptr. 130, 801 P.2d 373; accord, City of Moorpark v. Superior Court (1998) 18 Cal.4th 1143, 1156, 77 Cal. Rptr.2d 445, 959 P.2d 752.) But here Intel 265*265 seeks not merely to invoke the common law, but to modify it in a way that alters the doctrine's very character in order to extend it where the Legislature has not yet gone. Modification of the tort doctrine in this way, which would affect the free flow of communication on the internet, is better addressed by the legislative branch, or at the very least by a more suitable tort doctrine that can distinguish between reasonable and unreasonable burdens.

      237

      As Learned Hand cautioned—and this certainly applies when a court construes a common law doctrine that is embedded within a subsequent legislative enactment—"the judge must always remember that he should go no further than he is sure the government would have gone, had it been faced with the case before him. If he is in doubt, he must stop, for he cannot tell the conflicting interests in the society for which he speaks would have come to a just result, even though he is sure that he knows what the just result should be. He is not to substitute even his juster will for theirs; otherwise it would not be the common will which prevails, and to that extent the people would not govern." (Hand, How Far is a Judge Free in Rendering a Decision? CBS radio broadcast, May 14, 1933, collected in Aldisert, The Spirit of Liberty, Papers and Addresses of Learned Hand (1952) p. 109.)

      240

      [1] The full text of section 218, including clause (c), is found at pages 260-261, post.

      242

      [2] Nor is America Online, Inc. v. National Health Care Discount (N.D.Iowa 2000) 121 F.Supp.2d 1255, 1278, cited by the majority, to the contrary since there, the defendant conceded that a prima facie case of trespass to chattel had been established. The only issue there was whether the defendant was liable for a third party's actions.

      244

      [3] The majority cites to the U.S. Supreme Court's passing reference to a "form of trespass" in the context of unwanted mailings to householders in Rowan v. United States Post Office (1970) 397 U.S. 728, 737, 90 S.Ct. 1484, 1490, 25 L.Ed.2d 736, 742(Rowan). But the high court did not rule that an unwanted mailing constituted a trespass to chattel. "[A]n opinion is not authority for a proposition not therein considered." (Ginns v. Savage (1964) 61 Cal.2d 520. 524. fn. 2, 39 Cal.Rptr. 377, 393 P.2d 689.) In Rowan, the Court rejected a First Amendment challenge to a federal statute that authorized a person to remove his name from mailing lists. The Court stated: "To hold less would tend to license a form of trespass and would make hardly more sense than to say that a radio or television viewer may not twist the dial to cut off an offensive or boring communication and thus bar its entering his home." (397 U.S. at p. 737, 90 S.Ct. at p. 1490, 25 L.Ed.2d at p. 743). Nothing in Rowan suggests the common law, as opposed to a statute, can make unsolicited mailings a trespass to chattel.

  • 6 VI. Negligence: The Standard of Reasonable Care

    We now shift gears away from intentional wrongdoing and its defenses and toward what many consider to be the heart of tort law, both in volume of cases (and damages) and in conceptual challenge: negligence. Under what circumstances should someone’s actions be deemed careless enough to warrant damages, while falling short of the level of riskiness (or even certainty of harm) associated with intentional tort? At the core of negligence is a deceptively simple-sounding standard: act reasonably.

    Negligence law naturally draws in a group of defendants rarely seen in intentional tort: corporations. Can a standard of reasonableness be as intuitively grasped by a jury for judgment of a firm’s behavior as for a person’s actions? How much of the application of that standard should be left to a jury, and how much to a judge, who can decide whether a fact pattern – even one most sympathetic to a plaintiff – merits a jury’s look at all?

    The cases in these sections look at how the law conceives of a negligence standard by examining cases in which judges had to decide whether a jury should hear the case – or, if they heard it, whether they applied the standard correctly. Included is a case famed among legal scholars but typically unknown to senior practitioners: U.S. v. Carroll Towing. Carroll Towing introduces a formula by which one judge thought negligence might be further fleshed out – “unreasonable” behavior unpacked. How helpful is Judge Hand’s formula of b<pl? When, if ever, should a jury be exposed to it? Are there elements of unreasonable behavior not always captured by those three variables?

    • 6.1 VI.A. The Murky Line Between Intentional Torts and Negligence

      • 6.1.1 Topps v. Ferraro-- "The Punch at the Party"

        How should courts weigh wrongful acts in determining intent?

        1
        601 N.E.2d 292 (1992)
        2
        235 Ill. App.3d 43
        3
        175 Ill.Dec. 895
        4
        Anthony TOPPS, Plaintiff-Appellant,
        v.
        Phillip FERRARO, Defendant-Appellee.
        5
        No. 2-91-1129.
        6

        Appellate Court of Illinois, Second District.

        7
        October 8, 1992.
        8
        Rehearing Denied November 9, 1992.
        9

        293*293 Brian Dean Shore, argued, Guyer & Enichen, Rockford, for Anthony Topps.

        10

        Michael T. Caldwell, argued, Caldwell, Berner & Caldwell, Woodstock, for Phillip Ferraro.

        11

        Justice McLAREN delivered the opinion of the court:

        12

        Plaintiff, Anthony Topps, filed a one-count complaint in the circuit court of McHenry County alleging negligence against defendant, Phillip Ferraro. The trial court granted defendant's motion for summary judgment, and plaintiff filed this timely appeal. The sole issue presented for review is whether the trial court erred in granting summary judgment in favor of defendant. We reverse and remand the cause.

        13

        The deposition testimony of the parties reveals the following facts. On June 28, 1987, plaintiff and defendant attended a social gathering at the home of a mutual friend. Shortly after the arrival of defendant and a female companion, defendant encountered plaintiff in the living room of the house and asked plaintiff if he would step outside for a moment to discuss something. Plaintiff, at that moment, did not feel challenged or threatened and agreed to step outside. Once outside, defendant asked plaintiff about earlier statements allegedly made by plaintiff about defendant's girlfriend. Within a short period of time, the conversation grew heated and argumentative.

        14

        In his deposition, plaintiff stated that he informed defendant that he would speak to him later after defendant calmed down. He said that he turned around and felt defendant touch his left shoulder, that the next thing he could recall was waking up one to two minutes later in the bushes with his left eye feeling sore, and that he smelled a strong odor of blood. Plaintiff stated that he could not recall any other details from the moment he turned around until he regained consciousness. He further stated that he did not remember whether he pushed or shoved the defendant.

        15

        At his deposition, defendant stated that after the argument became heated plaintiff shoved him in the shoulder, and he responded by punching plaintiff in the face, contacting plaintiff's left eye. Plaintiff then fell to the ground, stating that he required medical assistance. Defendant further testified:

        16
        "A. [Defendant]: After talking and turning into an argument he pushed me on the shoulder, and once he hit me—well, pushed me, I hit him in the face.
        17
        * * * * * *
        18
        Q. So you said your reaction was to hit at him?
        19
        A. Well, that's just—I mean it wasn't something I thought about. Once he pushed me, I hit him, so it wasn't really any time.
        20
        Q. Is it your testimony at the time that you—that he pushed you it was your intent to hit him?
        21
        A. What?
        22
        Q. At the time—
        23
        A. He pushed me.
        24
        Q. It was your intent to hit him?
        25
        A. It wasn't a thought out thing. It was just all of a sudden I came up and hit him.
        26
        * * * * * *
        27
        Q. When you made contact with [plaintiff], what was your intention?
        28
        A. There was no intention. It was a matter—it was a matter of reflexes. I don't know what it was because really there was no time to think about it. Once he pushed me, I didn't think about he pushed me, hit him. It was just a matter of he pushed me and I hit him.
        29
        Q. Did you mean to hit him?
        30
        A. That was not—it wasn't my intention to bring him out there to go beat him up.
        31
        Q. I am saying at the time you did make contact?
        32
        294*294 A. Yes. There was no time. I didn't even think about it or anything. It was a matter of reaction."
        33

        The record does not reflect any additional testimony or factual evidence as to the altercation.

        34

        Plaintiff was treated for his eye injury at the Crystal Lake Ambutal and released. Plaintiff testified that after the swelling subsided four days later he observed that the entire white portion of his left eye was red and that a portion of his vision was blocked. Plaintiff sought further treatment from an eye specialist. Plaintiff testified that at the time of his deposition, which was approximately three years after he sustained the injury, his field of vision was still impaired and that his visual acuity had further deteriorated.

        35

        In his one-count complaint plaintiff alleged:

        36
        "4. * * * Defendant, Phillip Ferraro, was guilty of one or more of the following negligent acts:
        37
        (a) Extended his arm in a negligent matter [sic] without due regard for the presence of others.
        38
        (b) Made physical contact with the Plaintiff without due regard for the possible consequences of such contact.
        39
        (c) Failed to keep proper lookout for the Plaintiff.
        40

        5. That due to the foregoing negligent acts or omissions of the Defendant, Phillip Ferraro, the Plaintiff, Anthony Topps, was injured * * *." (Emphasis added.)

        41

        Defendant moved for summary judgment and attached copies of plaintiff's and defendant's discovery depositions. Defendant did not file a motion to strike or dismiss, nor did defendant file an affirmative defense in the nature of self-defense. Plaintiff filed no response to defendant's motion for summary judgment. The trial court granted defendant's motion, and plaintiff now appeals.

        42

        Plaintiff contends that an issue of material fact exists as to the "degree" of defendant's culpability and that the factual evidence presented in support of defendant's motion did not establish free and clear from doubt that defendant's conduct was other than negligent. Plaintiff focuses on defendant's professed state of mind at the time he struck plaintiff and argues that, because defendant was unable to provide an explanation why he struck plaintiff, a trier of fact could infer that defendant's conduct was negligent as opposed to intentional. Plaintiff further argues that defendant's testimony indicates that defendant negligently failed to contemplate the possible or probable consequences of his act in striking plaintiff. Defendant responds that the record clearly and unequivocally establishes that his actions were intentional and, therefore, no issue of material fact exists as to whether his conduct could be characterized as negligent.

        43

        Defendant argues that his intentional act precludes a grant of judgment to plaintiff on the issue of negligence by arguing the law relating to an intentional tort. However, defendant does not concede liability for either negligence or intentional tort because he claims self-defense. Defendant has failed to cite any law as to why an unreasonable belief in the need for self-defense is neither negligence nor an intentional tort. Defendant's argument, when distilled to its essence, is because he admitted that he committed an intentional act, he cannot be found to be negligent. Our independent research has disclosed two cases which allow recovery in negligence for such "intentional" acts. Blackburn v. Johnson (1989), 187 Ill.App.3d 557, 135 Ill. Dec. 200, 543 N.E.2d 583; Wegman v. Pratt (1991), 219 Ill.App.3d 883, 894, 162 Ill.Dec. 221, 579 N.E.2d 1035.

        44

        In this case, plaintiff's complaint alleged the following negligent acts by defendant: "(a) Extended his arm in a negligent matter [sic] without due regard for the presence of others[,] (b) Made physical contact with the Plaintiff without due regard for the possible consequences of such contact[, and] (c) Failed to keep a proper lookout for the Plaintiff." To state a legally sufficient cause of action in either simple or willful and wanton negligence, plaintiff must have alleged sufficient facts to show defendant had a duty to plaintiff, that he breached 295*295 such duty, and that an injury proximately resulted from that breach. (Wood v. Village of Grayslake (1992), 229 Ill.App.3d 343, 349, 170 Ill.Dec. 590, 593 N.E.2d 132.) The fact that defendant stated in his deposition that he intended to punch plaintiff neither mystically transmutes the allegations in plaintiff's complaint to an intentional tort nor precludes recovery in negligence.

        45

        The arguments of the parties set forth above are primarily due to the fact that the defendant apparently has insurance where coverage is dependent on the nature of the acts committed by defendant. The plaintiff has attempted to state a cause of action with facts that he believes will enable him to collect any judgment he might obtain. The defendant, on the other hand, has attempted to defend the action in such a way that no conflict of interest would arise between the defendant and his insurer. It is in this context that we consider whether the trial court erred in granting defendant's motion for summary judgment.

        46

        When reviewing the trial court's grant of summary judgment, the reviewing court must first determine whether the trial court erred in its ruling that no genuine issue of material fact existed. (Briarcliffe Lakeside Townhouse Owners Association v. City of Wheaton (1988), 170 Ill.App.3d 244, 248, 120 Ill.Dec. 465, 524 N.E.2d 230.) A motion for summary judgment should be granted when the pleadings, depositions, and admissions on file, together with the affidavits, reveal that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. (Ill.Rev.Stat.1989, ch. 110, par. 2-1005(c); Balla v. Gambro, Inc. (1991), 145 Ill.2d 492, 508, 164 Ill.Dec. 892, 584 N.E.2d 104.) If no issue of material fact has been raised, the court must determine whether judgment was correctly entered as a matter of law. (Briarcliffe, 170 Ill.App.3d at 249, 120 Ill.Dec. 465, 524 N.E.2d 230.) Thus, the reviewing court must apply the de novo standard of review and consider anew the facts and law related to the case. Shull v. Harristown Township (1992), 223 Ill.App.3d 819, 824, 166 Ill.Dec. 142, 585 N.E.2d 1164; Quinton v. Kuffer (1991), 221 Ill.App.3d 466, 471, 164 Ill.Dec. 88, 582 N.E.2d 296.

        47

        Contrary to a section 2-615 motion to dismiss, summary judgment should not be used to determine whether plaintiff's complaint sets forth a legally sufficient cause of action. Rather, a motion for summary judgment "almost necessarily assumes a cause of action has been stated." (Janes v. First Federal Savings & Loan Association (1974), 57 Ill.2d 398, 406, 312 N.E.2d 605.) If defendant wished to contest the sufficiency of plaintiff's complaint, he should have first filed a motion to strike and/or dismiss. Only when a legally sufficient cause of action had been stated should defendant have challenged the cause of action by a motion for summary judgment or his affirmative defense of self-defense. Magnuson v. Schaider (1989), 183 Ill.App.3d 344, 355, 131 Ill.Dec. 753, 538 N.E.2d 1309.

        48

        The purpose of summary judgment is not to try the issues, but to determine whether any triable issues exist. (Vesey v. Chicago Housing Authority (1991), 145 Ill.2d 404, 416, 164 Ill.Dec. 622, 583 N.E.2d 538; Quinton v. Kuffer (1991), 221 Ill.App.3d 466, 470, 164 Ill.Dec. 88, 582 N.E.2d 296.) At the summary judgment stage, contrary to the dissent contained herein, the plaintiff is not required to establish his case as he would at trial. Instead, the plaintiff must present some factual basis that would arguably entitle him to a judgment in his favor. (West v. Deere & Co. (1991), 145 Ill.2d 177, 182, 164 Ill.Dec. 122, 582 N.E.2d 685.) Plaintiff herein alleged his right to a cause of action based upon a negligence theory of liability and has neither alleged intent nor lack thereof. He is entitled to the benefit of every relevant fact necessary to succeed on the theory he has alleged. We find that the pleadings, depositions, and admissions on file, together with the affidavits, reveal that there is a genuine issue of material fact regarding defendant's negligence regardless of the issue of intent or lack thereof. (Blackburn, 187 Ill.App.3d at 560, 135 Ill. Dec. 200, 543 N.E.2d 583; Wegman, 219 Ill.App.3d at 894, 162 Ill.Dec. 221, 579) 296*296 N.E.2d 1035.) Accordingly, the trial court erred in ruling that no issue of material fact existed as to the nature of defendant's conduct as reasonable minds could find that the defendant was negligent in hitting the plaintiff.

        49

        For the foregoing reasons, we reverse the order of the circuit court of McHenry County granting judgment in favor of defendant, and the cause is remanded for further proceedings consistent with this opinion.

        50

        Reversed and remanded.

        51

        UNVERZAGT, J., concurs.

        52

        JUSTICE DOYLE, J., dissenting:

        53

        I respectfully dissent because I believe that the majority may have been led to an incorrect result through a misunderstanding of defendant's argument. The majority states that "[defendant's argument, when distilled to its essence, is because he admitted that he committed an intentional act, he cannot be found to be negligent" (emphasis in original) (235 Ill.App.3d at 47, 175 Ill.Dec. at 897, 601 N.E.2d at 294) and that defendant's admission in his deposition that he intended to punch plaintiff does not transform plaintiff's allegations into an intentional tort. Additionally, the majority questions why defendant failed to file a motion to strike and/or dismiss and states that a motion for summary judgment should not be used to determine whether plaintiff's complaint sets forth a cause of action. While I agree with this well-settled rule, it fails to address defendant's argument here. Defendant has not challenged plaintiff's complaint for failure to state a cause of action; rather, his focus is upon the failure of the plaintiff to provide evidence which would support the complaint's specific allegations of negligence. I understand defendant's position to be that negligence is a theory of action which is separate and distinct from intentional tort and that, although plaintiff has elected to proceed on a specific theory of negligence only, the evidence before the trial court presented no issue of material fact as to whether defendant's conduct could be characterized as negligent within the allegations of the complaint.

        54

        Plaintiff failed to offer any evidence in contradiction of the deposition testimony submitted in support of defendant's motion for summary judgment. It is well settled that facts contained within affidavits in support of a motion for summary judgment and uncontradicted by other factual evidence are admitted and considered true (Heidelberger v. Jewel Cos. (1974), 57 Ill.2d 87, 92-93, 312 N.E.2d 601) and that discovery depositions may be utilized in support of a summary judgment motion to the same extent as affidavits. 134 Ill.2d R. 212(a)(4); Carter v. Dunlop (1985), 138 Ill. App.3d 58, 63, 92 Ill.Dec. 418, 484 N.E.2d 1273.

        55

        It is true, however, that if reasonable persons could draw divergent inferences from the undisputed facts, summary judgment should be denied (Pyne v. Witmer (1989), 129 Ill.2d 351, 358, 135 Ill.Dec. 557, 543 N.E.2d 1304) and that a court must construe the deposition testimony strictly against the defendant-movant and liberally in favor of the plaintiff and enter summary judgment only when the right of the defendant is free and clear from doubt (Wilder Binding Co. v. Oak Park Trust & Savings Bank (1990), 135 Ill.2d 121, 130, 142 Ill. Dec. 192, 552 N.E.2d 783).

        56

        Intent, as defined within the context of tort liability, is not necessarily a hostile intent, or a desire to do any harm; rather, it is an intent to bring about a result which will invade the interests of another in a way that the law will not sanction. (Cowan v. Insurance Co. of North America, (1974) 22 Ill.App.3d 883, 893, 318 N.E.2d 315, citing W. Prosser, Handbook of the Law of Torts § 8, at 31 (4th ed. 1971).) Comment b of section 8A of the Restatement (Second) of Torts provides:

        57
        "All consequences which the actor desires to bring about are intended * * *. If the actor knows that the consequences are certain, or substantially certain, to result from his act, and still goes ahead, he is treated by the law as if he had in fact desired to produce the result." 297*297 (Restatement (Second) of Torts § 8A, Comment b, at 15 (1965).)
        58

        The term "intent" is commonly used "to describe the purpose to bring about stated physical consequences" and is concerned with the consequences of the act. (Emphasis in original.) (W. Keeton, Prosser & Keeton on Torts § 8, at 35 (5th ed. 1984).) Motive focuses on the subjective rationale that inspires the act and the intent. W. Keeton, Prosser 8, at 35 (5th ed. 1984).

        59

        It is recognized that motive and intent are related states of mind and that confusion sometimes exists as to their precise interaction in the context of tort liability. In analyzing the circumstances of the present incident, however, I conclude that defendant's inability or failure in his deposition to specifically articulate his reason for striking plaintiff does not provide support for any inference that he acted negligently. Plaintiff's argument confuses motive with intent. Defendant's deposition testimony does not evidence his lack of intent; rather, it demonstrates his subjective reasoning, or lack thereof, as to why he engaged in an act of striking plaintiff. Although defendant testified that "it wasn't something he thought about" and that it was a matter of reflexes, he clearly and unequivocally stated that he struck plaintiff. The only reasonable interpretation of the evidence is that defendant struck out intentionally in response to allegedly being pushed by plaintiff.

        60

        Additionally, there is no evidence which suggests an alternative inference that defendant did not know or was substantially uncertain of the consequences of his act of striking plaintiff. Plaintiff has failed to respond to the motion for summary judgment by submitting facts which would raise an alternative inference (see Randle v. Hinckley Parachute Center, Inc. (1986), 141 Ill.App.3d 660, 661, 96 Ill.Dec. 5, 490 N.E.2d 1041), and he cannot rely upon mere conjecture or surmise as being sufficient to raise a genuine issue of negligence (see Koukoulomatis v. Disco Wheels, Inc. (1984), 127 Ill.App.3d 95, 101, 82 Ill.Dec. 215, 468 N.E.2d 477). I conclude that the testimony relating to defendant's motive is insufficient to raise an issue of material fact as to whether defendant's conduct was negligent as opposed to intentional.

        61

        Plaintiff submits an alternative theory by which a trier of fact might characterize defendant's conduct as negligence. He argues that the facts might be interpreted as showing that defendant made an unreasonable decision to act intentionally in defense of his person against plaintiff's advances. A determination of negligence, it is asserted, could be predicated upon the defendant's faulty decision to act intentionally. Although I agree with the majority that under certain circumstances this has been recognized to be a viable theory of negligence (see Wegman v. Pratt (1992), 219 Ill.App.3d 883, 162 Ill.Dec. 221, 579 N.E.2d 1035; Blackburn v. Johnson (1989), 187 Ill.App.3d 557, 135 Ill.Dec. 200, 543 N.E.2d 583), it has no applicability to assist plaintiff in the present case because his complaint does not allege any such theory of negligence. On the contrary, the complaint describes defendant's "negligent acts" as follows: "(a) Extended his arm in a negligent matter [sic] without due regard for the presence of others[,] (b) Made physical contact with the Plaintiff without due regard for the possible consequences of such contact[, and] (c) Failed to keep a proper lookout for the Plaintiff." In contrast, both Wegman and Blackburn, cited by the majority, involved complaints which specifically alleged a theory of negligent decision to use force in defense of person. (Wegman, 219 Ill.App.3d at 895, 162 Ill. Dec. 221, 579 N.E.2d 1035; Blackburn, 187 Ill.App.3d at 560, 135 Ill.Dec. 200, 543 N.E.2d 583.) Considering the plain and ordinary meaning of the present allegations, coupled with plaintiff's failure to respond to the motion for summary judgment by arguing any alternative theory of interpretation, I conclude that the trial court was correct in its ruling that no issue of material fact existed as to the nature of defendant's conduct.

        62

        Having determined that no issue of material fact exists, the next consideration is whether the trial court, as a matter of law, properly granted summary judgment in favor 298*298 of defendant. Defendant contends that an uncontroverted showing of intentional conduct entitled him to summary judgment.

        63

        Intentional torts and negligence are distinct causes of action. Contrary to plaintiff's contention, differing theories of tort liability are distinguished, not by their difference in degree of culpability, but rather, they are distinguished on the basis of their qualitative differences in kind. (See Burke v. 12 Rothschild's Liquor Mart, Inc. (1992), 148 Ill.2d 429, 450-52, 170 Ill. Dec. 633, 593 N.E.2d 522 (qualitative differences between negligence and wilful and wanton conduct preclude their comparison for comparative fault purposes).) Moreover, it is the presence of the recognized elements of negligence and not the absence of intentional or reckless conduct which determines the right to maintain a negligence cause of action. In ruling upon a motion for summary judgment, the court must consider the specific allegations of the complaint. A complaint must contain a plain and concise statement of the plaintiff's cause of action. (Ill.Rev.Stat.1991, ch. 110, par. 2-603(a).) It should sufficiently define the issues and reasonably inform the defendant of the claim which he or she is called upon to meet. (Ill.Rev.Stat.1991, ch. 110, par. 2-612.) Plaintiff, as the master of his complaint, was free to choose his theory of action, and a court's determination of whether plaintiff is entitled to recovery is based upon the evidence adduced in support of his chosen theory.

        64

        If, from the evidence before the court, a plaintiff has failed to establish an element of his cause of action as alleged, summary judgment for the defendant is proper. (Pyne v. Witmer (1989), 129 Ill.2d 351, 358, 135 Ill.Dec. 557, 543 N.E.2d 1304.) Plaintiff alleged his right to a cause of action based upon a specifically identified negligence theory of liability and was entitled to the benefit of every relevant fact necessary to succeed on that theory. His failure to provide sufficient evidence necessary to withstand defendant's summary judgment motion, however, required the trial court to determine, as a matter of law, that plaintiff was not entitled to maintain his cause of action for negligence.

        65

        For the foregoing reasons, I would affirm the circuit court's order granting summary judgment in favor of defendant.

    • 6.2 VI.B. Understanding the Standard

      • 6.2.1 Chicago, B. & Q. R. Co. v. Krayenbuhl--"The Foot-Severing Turntable"

        When ruling on negligence, should courts consider factors unrelated to the potential harm of an activity (such as the activity’s usefulness to society)?

        1

        65 Neb. 889
        Supreme Court of Nebraska

        Chicago, B. & Q. R. Co. v. Krayenbuhl

        Oct. 9, 1902


        3

        ALBERT, C. This action was brought on behalf of Lee Krayenbuhl, whom we shall hereafter call the plaintiff, by his next friend, against the Chicago, Burlington & Quincy Railroad Company to recover for personal injuries received by the plaintiff while playing on a turntable belonging to the defendant.

        4

        It sufficiently appears from the evidence that on and prior to the 20th day of October, 1895, the defendant operated a line of rail-road, which extended through the village of Palmer, at which point it maintained a passenger depot, roundhouse, coalhouse, water tank, and turntable. A few rods northwest of the depot the road branched, one branch taking a westerly and the other a northwesterly course. The turntable was situated between those two branches, at a point about 1600 feet from the depot and about 100 feet from each branch and a track extended to it from the point' of divergence of the two branches A path or footway beginning some distance northwest of the turntable ex-tended in a southeasterly direction passed within about 70 feet of it and crossed the track at the south. This path was in common use, not only by the members of the family to which the plaintiff belonged, but by the public generally, and there was no fence between it and the turntable. The turntable was provided with a movable bolt, which by means of a lever could be thrown into a socket in the surrounding framework, thus holding the turntable in position. Provision was also made for locking it with a padlock. The rules of the defendant in force at the time required the foreman of the roundhouse, or in his absence the station agent, to keep the turntable locked when not in use; but there is considerable evidence to the effect that this rule was frequently disregarded, and that, owing to the looseness of one of the staples used in connection with the lock even when thus fas-tened it could be unfastened by young children without much difficulty The plaintiff's father was in the employ of the defendant as section foreman and with his family occupied a small house on the right of way near the station within about 30 feet of the track and about 1600 feet from the turntable Another family resided on the right of way a few rods from the turntable The two families visited back and forth using the right of way for a path. The plaintiff’s father kept a cow, which was pastured on the right of way, sometimes near the turntable, and it appears from the evidence that his children drove it back and forth on the right of way as occasion required. There is evidence tending to show that it was the common practice for the children of the family and other children in the neighborhood to resort to the coalhouse, roundhouse, and turntable, and to amuse themselves by revolving the turntable, and riding it while it was in motion, and that this practice was known to the defendant, who permitted it without protest.

        5

        On the 20th day of October, 1895, in the absence of his parents, the plaintiff,—he was then four years of age,—in company with some other members of the family, the oldest of whom was eleven years old, and some other children, the oldest of whom was fourteen, were playing with a push car, moving it up and down on the railroad track. The agent in charge of the station joined them, and rode a short distance on the car. He then left them, and went to his rooms in the station. The children continued to push the car, and finally reached the turntable. There is evidence sufficient to sustain a finding that they found the turntable unlocked and unguarded, but the evidence is conflicting on that point. The plaintiff and some of the other children got on the turntable, while two of the others set it in motion. While it was in motion the plaintiff's foot was caught between the rails, and severed at the ankle joint. The injury thus sustained is that for which damages is sought in this action. A trial was had to a jury, which resulted in a verdict and judgment for the plaintiff. The defendant brings error.

        6

        The first question raised is that the petition does not state facts sufficient to constitute a cause of action. The grounds of this objection, as stated in the defendant's brief, are as follows: "It does not allege the authority of any agent of the defendant to in-vite the plaintiff upon its turntable, or any facts which constitute such express invita-tion. It does not allege the characteristics either of location or construction of the table, which of themselves render the table an invitation to the danger." The petition is too long to set out at length. We think it will suffice to say that the allegations in these respects are that the plaintiff was induced by other small children, with the knowledge and consent of the defendant, its agents and servants, and by the invitation of the defendant, to come to and about the turntable. Oh the face of the petition, this is an allegation of an invitation by the defendant. If the plaintiff were invited by the defendant, he was invited by some agent of the defendant having authority in the premises. The allegation in that regard is sufficient. It is true the facts constituting such invitation are not set forth nor do we deem it necessary that they should be for the purposes of the objection under consideration, which was first made by an objection to the introduction of any testimony on the ground that the facts stated in the petition did not constitute a cause of action.

        7

        The question to which counsel have directed the greater portion of their arguments is whether the facts in this case are sufficient to sustain the verdict. On this ques-tion we have been favored with an exhaustive discussion of what Is commonly known as the "doctrine of the Turntable Cases," -which applied to the facts in this case, would sustain the verdict. The leading case in support of this doctrine is Railroad Co. v. Stout, 17 Wall. 657, 21 L. Ed. 745. The doctrine was reaffirmed by the same court in Railroad Co. v. McDonald 152 D. S. 262, 14 Sup. Ct. 61D, 38 L. Ed. 434, and was expressly approved by this court in Railroad Co. V. Bailey, 11 Neb. 336 9 N W 50, and was approved and applied in the following among other cases: Barrett v Pacific Co 91 Cal 296 27 ??? 666 25 Am. St. Rep 186; Keffe v. Railway' Co Minn. 207, 18 Am. Rep. 393; Twist v. Railroad Co. (Minn.) 39 N. W. 402, 12 Am. St. Rep. 626; Railway Co. v. Pitzsimmons, 21 Kan. 686, 31 Am. Rep. 203; Navigation Oo. v. Hedrick, 1 Wash. 446, 25 ???. 335, 22 Am. St. Rep. 169; Railroad Co. v. Skidmore (Tex. Civ. A pp.) 65 S. W. 215; Railway Co. v. McWhirter, 77 Tex. 356, 14 S. W. 26, 19 Am. St. Rep. 755; Harrlman v. Railway Co., 45 Ohio St 11, 12 N. E. 451, 4 Am. St. Rep. 507; Ferguson v. Railway Co., 75 Ga. 637; Nagel v. Railway Co., 75 Mo. 653, 42 Am. Rep. 418. The doctrine, as we gather it from the cases cited, is that where a turntable is so situated that its owner may reasonably expect that children too young to appreciate the danger will resort to it, and amuse themselves by using it, it is guilty of negligence for a failure to take reasonable precautions to prevent such use. It has not been permitted to pass as law unchallenged. On the contrary, it has been expressly repudiated in many cases, among which are the following: Walsh v. Railroad Co. (N. Y.) 39 N. E. 1069, 27 L. R. A. 724, 45 Am. St. Rep. 615; Daniels v. Railroad Co., 154 Mass. 349, 28 N. B. 283. 13 L. R. A. 24& 26 Am. St Rep. 253; Frost v. Railroad, 64 N. H. 220, 9 Atl. 790, 10 Am. St Rep, 396; Railroad Co. v. Reich (N. J. Err. & App.) 40 AtL 682, 41 L. R. A. 831, 68 Am. St Rep. 727. It has been criticised in others, among which are Ryan v. Towar (Mich.) 87 N. W. 644, 55 L. R. A. 310, and Dobbins v. Railroad Co. (Tex. Sup.) 41 S. W. 62, 38 L. R, A. 673, 66 Am. St. Rep. 856. The latter case would seem to throw some doubt on the position of the courts of Texas In regard to the doctrine in question, but the case of Railroad Co. v. Skidmore, supra, appears to be the latest expression of the court on the question.

        8

        The defendant insists that the doctrine is unsound, and asks that it be repudiated by the court, and that the case of Railroad Co. v. Bailey, supra, be overruled. The argument in this behalf rests on the proposition that the owner of dangerous premises owes no active duty to trespassing children. The assumption that; the plaintiff was a trespasser might well be questioned. The right of way was his home and playground; it was where his father performed his dally labors; it was used ?? a path and for other purposes by the family. But as the duty of the owner of dangerous premises to infant trespassers is raised by other assign-ments, it will shorten this opinion to allow the assumption to pass unchallenged. The proposition is not universally true, as is clearly shown, we think:, by Sedgwick, J., in Tucker v. Duaper, 62 Neb. 66, 86 N. W. 917, wherein be says: "* * * There may be; and often are, circumstances under which one owes some active duty to a trespasser upon his premises. If a man willfully lies down upon a railroad track, the engineer must not wantonly run his engine over him. One may not set a snare or spring gun for trespassers, and, knowing that some stranger had placed the snare or spring gun, it he wantonly allows It to remain he will be responsible for the consequences. A well may be so contrived as to act as a danger?us trap, and one who allows it so to remain upon his premises will, under some circumstances, be liable. If adults, or children of such age as to ordinarily be capable of discerning and avoiding danger, are injured while trespassing upon the premises of another, they may be without remedy, while under similar circumstances children of three or four years of age would be protected. If I know that there is an open well upon my premises, and know that children of such tender years as to have no notion of their danger are continually playing around it and I can obviate the danger with very little trouble to myself, and without injuring the premises or interfering with my own free use thereof, I owe an active duty to those children, and if I neglect that duty, and they fall into the well and are killed, it is through my negligence. I cannot urge their negligence as a defense, even though I have never invited or encouraged them, expressly or im-pliedly, to go upon the premises."

        9

        The language amounts to a reaffirmance of the doctrine of the turntable cases, and, to our minds, suggests the true principle upon which cases of this character rest; that is, that where the owner of dangerous prem-ises knows, or has good reason to believe, that children so young as to be ignorant of the danger will resort to such premises he la bound to take such precautions to keep them from such premises, or to protect them from injuries likely to result from the dan-gerous condition of the premises while there, as a man of ordinary care and prudence, under like circumstances, would take. At first sight it would seem that the principle, thus stated, is too broad, and that its application would impose unreasonable burdens on owners, and intolerable restrictions on the use and enjoyment of property. But it must be kept in mind that It requires nothing of the owner that a man of ordinary care and prudence would not do of his own volition, under like circumstances. Such a man would not willingly take up unreasonable burdens, nor vex himself with intolerable restrictions.

        10

        It is true, as said in Loomis v. Terry, 17 Wend. 497, 31 Am. .Dec. 306, "the business of life must go forward"; the means by which it is carried forward cannot be rendered absolutely safe. Ordinarily, It can be best carried forward by the unrestricted use of private property by the owner; therefore the law favors such use to the fullest extent consistent with the main purpose for which, from a social standpoint such business is carried forward, namely, the public good. Hence, in order to determine the extent to which such use may be enjoyed, its bearing on such main purpose must be taken into account, and a balance struck between its advantages and disadvantages. If, on the whole, such use defeats, rather than promotes, the main purpose, it should not be permitted; on the other hand, if the restrictions proposed would so operate, they should not be imposed. The business of life is better carried forward by the use of dangerous machinery; hence the public good demands its use, although occasionally such use results In the loss of life or limb. It does so because the danger is insignificant When weighed against the benefits resulting from the use of such machinery, and for the same reason demands its reasonable, most effective and unrestricted use, up to the point where the benefits resulting from such use no longer outweigh the danger to be anticipated from it At that point the public good demands restrictions. For example, a turntable is a dangerous contrivance, which facilitates railroading; the general benefits re-sulting from its use outweigh the occasional injuries inflicted by it; hence the public good demands its use. We may conceive of means by which it might be rendered absolutely safe, but such means would so interfere with its beneficial use that the danger to be anticipated would not justify their adoption; therefore the public good demands its use without them. But the danger incident to its use may be lessened by the use of a lock which would prevent children, attracted to it, from moving it; the interference with the proper use of the turntable oc-casioned by the use of such lock is so slight that it is outweighed by the danger to be anticipated from an omission to use it; therefore the public good, we think, demands the use of the lock. The public good would not require the owner of a vacant lot on which there is a pond to fill up the pond or enclose the lot with an impassable wall to insure the safety of children resorting to it, because the burden of doing so is out of proportion to the danger to be anticipated from leaving it undone. Richards v. Connell, 45 Neb. 467, 63 N. W. 915. But where there is an open well on a vacant lot, which is frequented by children, of which the owner of the lot has knowledge, he is liable for injuries sustained by children falling Into the well, because the danger to be anticipated from the open well, under the circumstances, outweighs the slight expense or Inconvenience that would be entailed in making it safe. Tucker ?. Draper, supra.

        11

        Hence, in all cases of this kind In the determination of the question of negligence, regard must be had to the character and location of the premises, the purpose for which they are used, the probability of Injury therefrom, the precautions necessary to prevent such injury, and the relations such pre-cautions bear to the beneficial use of the premises. The nature of the precautions would depend on the particular fact In each case. In some cases a warning to the children or the parents might be sufficient; in others, more active measures might be required. But in every case they should be such as a man of ordinary care and prudence would observe under like circumstances. If, under all the circumstances, the owner omits such precautions as a man of ordinary care and prudence, under like circumstances, would observe, he is guilty of negligence. We are fully satisfied that the principle under consideration is sound, and that its application would not operate op-pressively on the owner. We see no good reason for receding from the position already taken by this court in cases of this character.

        12

        The defendant tendered the following Instruction: "The jury are instructed that in this case the plaintiff claims, In substance, that the railroad company was negligent in the manner in which it kept and used the turntable by which the plaintiff was injured, and that the turntable in question was a machine that was naturally enticing to children, and that children were tempted to play on and about this turntable. On this point the court instructs you that the law is that the railroad company has the right to the exclusive use of Its own grounds and turntable and other machinery, the same as any other person has the exclusive right and use of his own property and premises, and that the company was under no obliga-tions to keep its turntable in such a condition that it would be safe and convenient for children to play upon and to use as a plaything; and the court instructs you that the defendant was under no obligation to keep a watchman at and about said turntable for the purpose of excluding children therefrom; that the company was only required to exercise reasonable care In the placing and using of said turntable, and have the same fitted with such appliances as would make it reasonably safe and convenient for the purpose for which it was intended." The court re-fused the instruction as tendered, and modified it by omitting the concluding clause, and inserting the following: "But the company was required to exercise reasonable care in the placing and fastening of the turntable and having the same fitted with such appliances as would make It reasonably safe In the situation where it was placed, under the circumstances as disclosed in this case."

        13

        The instruction as thus modified was given. The complaint of the refusal of the court to give the instruction as tendered is covered by what has been said on the sufficiency of the facts to sustain the verdict. But the defendant insists that the Instruction as modified is erroneous, in that it submitted to the jury the proper construction and location of the turntable. Taking the Instruction as a whole, we do not think it admits of that construction. The opening sentence informs the jury of the nature of the plaintiffs claim; that such claim is that the defendant "was negligent in the manner in which it kept and used the turntable by which the plaintiff was injured." In paragraph 7 of the Instructions the jury were told that the action rests on the alleged negligence of the defendant in not keeping the turntable guarded, locked, or properly fastened. In the fifteenth paragraph they were told that the defendant "had a right to have and use the turntable in the carrying on of its business as a railroad company." The re-jected clause of the Instruction under consideration, as tendered by the defendant, uses the word "placing," the, only word used in the substituted clause that could be construed as a reference to the location or construction of the turntable. From these considerations, we think the clause complained of has no refer-ence to the location nor original construction of the turntable, but refers rather to the condition In which it was to be kept or left when not in use. In the light of the entire charge, the jury could hardly have understood it to refer to the location or construction of the turntable.

        14

        Another instruction tendered by the defendant is as follows: "If the jury find from the evidence that the turntable in question was a ponderous and powerful machine when set in motion, and that according to its mechanism it would turn easily, and when turned, even for a small space, it would accumulate a force of momentum of great power; and if you further find that the young people and Children meddling with said turntable at the time of the injury complained of worked upon the levers of said machine back and forth through the small space in which the turntable could be moved, even when the fastenings were in proper place and held the machine; and that by motion and momentum of the Machine set in motion by the young people at the levers the fastenings became loosened so as to permit the turntable to go around, then you are Instructed that under this state of facts the plaintiff could not recover, and your verdict should be for the defendant." It was refused, and its refusal is now assigned as error. The instruction entirely omits the question of due care. There was evidence to the effect that the lock used for the turntable was little, if any, obstacle to the use of the turntable by children, because one of the staples was loose, and could be easily removed. The instruction, if given, would have justified a finding of due care, however carelessly the turntable was fastened. That would have been erroneous. The Instruction, In our opinion, was properly refused.

        15

        The court on its own motion gaye the following instruction as part of the charge to the jury: "But if you find, from a preponderance of the evidence, that the turntable in question was a dangerous machine, and the defendants did know, or had reason to believe, under the circumstances of the case, the children of the place would resort to the turntable to play, and that if they did they would or might be injured, then, if they took no means to keep the children away, and no means to prevent accident, this would be evidence of negligence, and would be answerable for damages caused thereby to the children of tender years, and who did not possess sufficient knowledge or understanding to know the danger or dangerous character of such turntable. However, the defendants are not insurers of the limbs of those, whether adults or children, who may resort to their grounds, and there are many injuries continually happening which involve no pecuniary liability to any one." The defendant contends that there is no evidence to support the hypothesis that the defendant took no means to keep the children away, and no means to prevent the accident. The evidence of at least one of the children who was present at the time, and who assisted in revolving the turntable at the time, is to the effect that it was not locked, but yielded at once to their efforts to move it. There is other evidence to the same effect. Another witness testifies that it was never locked. As to the means taken to keep the children from the turntable, a considerable portion of the testimony offered on behalf of the plaintiff tends to show that no such means were taken. The defendant contends that the location of the turntable, at a distance from the town, was, in itself, a means of protection But the instruction has reference to circumstances as they existed at the time of the accident. The location of the turntable, as a means of protection, is important only as tending to show the improbability of children resorting to it, and that the defendant could not reasonably be expected to anticipate that they would do so. It becomes immaterial when, according to the hypothesis, the defendant knew, or had good reason to believe, that children would resort to the turntable and be injured by it The instruction, we think, finds ample basis in the evidence.

        16

        Another criticism urged against this Instruction is that it invades the province of the Jury, in that it charges that if the defendant, under the circumstances stated, took no means to keep the children away, and no means to prevent the accident, it would be answerable in damages. The defendant insists that the question of negligence was one for the jury, and that it was not within the province of the court to say, in effect, that a certain state of facts constituted negligence. We are inclined to think this criticism is just. From the wording of the instruction, the jury could hardly draw any other conclusion than that, if they found the facts specifically stated therein, the verdict should be for the plaintiff; in other words, that such facts were to be considered by them, not only as evidence of negligence, but as negligence per se. It has been repeatedly held by this court that it is erroneous to single out and state a group of facts, and inform the jury that if such facts are found it establishes the existence of negligence. The question of negligence is seldom one of law. and the facts enumerated in the instruction should have been considered by the jury as evidence of negligence, to be considered in the light of all the other facts and circumstances shown in evidence. To thus single out and state a group of facts has been held by this court to amount to an improper comment on questions of fact by the court. We think the instruction was erroneous, and that the following cases Support that view: Railway Co. v. Baier, 37 Neb. 235, 55 N. W. 913; Railway Co v. Morgan, 40 Neb. 604, 59 N. W. 81; Railroad Co. -v. Oleson, 40 Neb. 889, 59 N. W 354; Village of Culbertson v. Holllday, 50 Xeb. 229, 69 N. W. 853.

        17

        The nineteenth and twentieth paragraphs of the charge to the jury related to the measure of damages, and are as follows:

        18

        "(19) The jury are instructed if from the evidence in the case, and under the constructions of the court, the jury shall find the issues for the plaintiff, and that the plaintiff has sustained damages, as charged in the declaration, then, to enable the jury to estimate the amount of such damages, it is not necessary that any witness should have expressed an opinion as to the amount of such damage, but the jury may themselves make such estimate from the facts and circumstances in proof, and by considering them in connection with their own knowledge, observation, and experience in the business affairs of life.

        19

        "(20) The jury are instructed that if, on the evidence in the case and under the instructions of the court, they find the issue in favor of the plaintiff, and that the plaintiff has sustained damages, as charged in the petition, then in assessing such damages they should take into consideration the age, expectancy of life of the plaintiff, his inability to labor as shown by the evidence, his mental anguish and bodily pain, if any has been shown, and whether or not the injury to the plaintiff is permanent. You should take all these elements into consideration, and allow him such a sum as will be fair and just

        20

        compensation for the injuries sustained, not exceeding the sum of $25,000. But you cannot allow him exemplary damages; that is,

        21

        damages of punishment of the defendants."

        22

        One objection urged against these Instructions is that the jury were required to consider the facts and circumstances in evidence "in connection with their own knowledge, observation, and experience In the business affairs of life." It is not only proper, but necessary, that, in arriving at a verdict, the jury should make use of such knowledge as they possess to common with other men. But the instruction imposes no such limitation. We think the jury might have fairly inferred from it that they were required to bring to bear any special knowledge which they might have on the subject, or the result of their observations and ex1-perience in like cases, which would be manifestly improper.

        23

        Another objection to the instructions in this behalf is that the jury were required to take into account the plaintiffs inability to labor as an element of damage. The defendant insists that as the plaintiff is a minor, in the custody of his father, who is charged with his support and entitled to his earnings during minority, his inability to labor during his minority is not a proper element of damage In this case. The case of Railroad Co. v. Johnson (Tex. Sup.) 44 S. W. 1067, was an action for personal injuries to an infant, and an instruction not different in principle from those complained of was held reversible error for the reasons now urged by the defendant. The same principle was involved in an instruction con-sidered In Decker v. McSorley (Wis.) 86 N. W. 554. The instruction was condemned.

        24

        A further objection is urged against these instructions, and that is that they instruct the jury that the damages shall not exceed $25,000. The defendant insists that an intimation was thereby conveyed to the jury that they might allow that sum, and that such intimation was prejudicial to the defendant. No authority is cited in support of this objection, nor are we aware that any exists. It is not unusual for courts to instruct the jury as to the limit of damages allowable under the pleadings in the case. As a matter of practice, we believe it should be omitted. If the damages awarded exceed the amount allowable, the remedy is simple. We believe that most lawyers will agree with us that the intimation conveyed to the jury by such a statement is dangerous to the defendant. We do not go to the extent of saying that it would constitute reversible error, but we believe the practice should be discountenanced.

        25

        In the course of the trial, the court permitted the plaintiff to introduce in evidence a certain printed rule of the defendant which provided that turntables should be kept locked when not in use, and that it was the duty of agents at the stations where there was no engine house foreman to see that such turntables were locked after being used. Parol testimony whs admitted to the same effect. It also admitted evidence to the effect that immediately after the accident the station agent went to the turntable and locked It. The defendant insists that the admission of this evidence was error. We do not think so. If was necessary to bring home to the defendant knowledge that children were likely to resort to the turntable. There is evidence tending to show that both employees mentioned in the rule introduced in evidence had knowledge of such fact, and the rule, taken in connection with the evidence to their relations to the defendant, tends to bring such knowledge home to the defendant. That the agent locked the turntable immediately after the accident had a bearing on the question of whether the turntable was locked before the accident, which was one of the issues in the case.

        26

        Another witness was permitted to testify that he went to the turntable after the accident, on the same day, and found the table unlocked. The defendant argues that jt was not admissible to show the condition of the table after the accident occurred. This evidence, we think, is also admissible, as tending to show that the children found the turntable unlocked before the accident occurred.

        27

        Objection is also made to the admission of evidence of testimony to the effect that the roadmaster, or division superintendent, which one is not stated, was at the turntable after the accident, how long after does not appear. The object of this evidence is not clear, nor are we able to see how it had any influence on the verdict one way or another. The objection that it was Immaterial appears to be well founded, but we cannot see that its admission would constitute reversible error.

        28

        The defendant complains of the admission of testimony to the effect that the station agent on the day of the accident met the children, who were playing with the push car, rode a short distance on the push car, and said nothing to the children about playing with it. The ground of this complaint appears to be that playing with the push car, when the agent saw them and took part in the sport, and playing on the turntable, some 500 yards distant, were independent transactions, and the agent could not reasonably anticipate that they would go to the turntable from the place be left them, and therefore was not required to warn them of its danger. It seems to us that the station grounds as a whole were dangerous premises, especially for children of that age. The turntable was only one of its many dangers. the evidence objected to, it seems to us, was competent to show that the defendant had knowledge that children frequented these dangerous premises, and that they did so with, its knowledge and consent. We think there was no error in the admission of this testimony.

        29

        Certain impeaching questions were addressed to one of the defendant's witnesses which were objected to by the defendant on the ground, among others, that no foundation bad been bid. Before the questions were asked, the defendant's attention was directed to the time and, place where the con-tradictory statements were made, and to the persons in whose presence they were made. Taken in connection with his testimony on direct examination, the witness could not fall to understand to what the question related. We think the foundation was sufficient, and that his answers, some of them showing that be had made contradictory statements, were properly admitted.

        30

        We recommend that the judgment of the district court be reversed, and the cause remanded for further proceedings according to law.

        31

        AMES and DUFFIE, concur

        32

        PER CURIAM. For the reasons stated in the foregoing opinion, the judgment of the district court is reversed, and the cause remanded for further proceedings according to law.