II. Assault and Battery: Intent and Autonomy | Samantha Bates | September 12, 2015


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II. Assault and Battery: Intent and Autonomy

Original Creator: Jonathan Zittrain Current Version: Samantha Bates Show/Hide

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?


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      1. 1.1.1 Show/Hide More Wishnatsky v. Huey-- “The Overly-Sensitive Intruder”
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
        Should findings of offensive-contact-battery be based on a plaintiff’s level of sensitivity, or a more general standard?
        Plaintiff opened the door to an office in which defendant and plaintiff’s employer were having a private conversation. Defendant closed the door, pushing the plaintiff back out. No physical injuries were alleged by the plaintiff. The plaintiff claimed that as a born-again Christian, he was especially sensitive to “evil spirits” and “the demonic”; therefore, defendant's actions greatly offended him.
      2. 1.1.5 Show/Hide More Crary's Affidavit
        Original Creator: Jonathan Zittrain Current Version: Samantha Bates
    1. 1.2 Show/Hide More O'Brien v. Cunard--"The Silent Vaccine Objector"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      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?
      Plaintiff stood in a vaccination line on a ship. When plaintiff reached the ship’s surgeon, she claimed to have been vaccinated before. However, because no vaccination mark was visible, the surgeon insisted that she be vaccinated again. Plaintiff voluntarily raised her arm to be vaccinated and took a ticket which certified her vaccination and avoid quarantine upon leaving the ship. Nevertheless, the plaintiff’s suit alleged that she did not consent to the vaccination.
    1. 2.1 Show/Hide More Leichtman v. WLW Jacor Communications, Inc. -- "The Smoke in the Face Case"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Should a smoker's license to freely blow his smoke be limited by the sensitivity of non-smokers?
    2. 2.2 Show/Hide More Werth v. Taylor -- "The Blood-Transfusion-Refusing Jehovah's Witness"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Should health care professionals be allowed to administer life-saving, emergency treatment when there is a possibility that the patient would have refused?
    1. 3.1 Show/Hide More Womack v. Eldridge--"The Distressing Accusation of Molestation"
      Original Creator: Jonathan Zittrain Current Version: Samantha Bates
      Should we hold people accountable for causing severe distress in others, even if no physical contact—or the threat thereof—was involved?
      The defendant deceitfully took plaintiff's photograph under the guise of conducting an interview with the plaintiff. The photograph was obtained on behalf of defendant's employer—an attorney—who then used the photograph as part of a client's defense in a sexual molestation case. Because the defense tactic implied the plaintiff was the actual molester, plaintiff was dragged into the client's ongoing trial despite lacking any real connection to the case. Plaintiff alleged extreme anxiety, loss of sleep, shock, and depression due to his unwarranted involvement in the case.

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September 12, 2015

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Samantha Bates

Research Associate

Harvard Law School, Berkman Center

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