I. Assault and Battery: Reconciling Harm with Culpability | Lydia Lichlyter | September 18, 2015


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I. Assault and Battery: Reconciling Harm with Culpability

Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter Show/Hide

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?


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    1. 1.1 Show/Hide More Vosburg v. Putney--"The Schoolboy Kicker"
      Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
      Should defendants be liable for unforeseeable injuries?
      The plaintiff and defendant are schoolmates. Plaintiff kicked the defendant's leg in a classroom, during school hours. After the kick, the defendant's leg—which had nearly recovered from a prior injury—became inflamed. The plaintiff was likely unaware of the defendant's previous injury, and therefore unable to foresee the extraordinary harm the kick would inflict.
    2. 1.2 Show/Hide More Alcorn v. Mitchell--"The Angry Spitter"
      Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
      Should damages for battery encompass indignities as well as physical injuries? Should juries be able to assign extra damages for particularly malicious or bad-natured conduct?
      Defendant spat in plaintiff's face at the close of an earlier trial, in front of a large number of people. Plaintiff was awarded $1,000 ($17,980.86 in 2010 dollars). Defendant appeals the verdict as excessive.
    1. 2.1 Show/Hide More Garratt v. Dailey--"The Chair-Pulling Five Year Old"
      Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
      Should defendants be liable if they knowingly expose the plaintiff to a near certainty of harmful contact? If so, should liability still be assigned even if the defendant did not act for the purpose of hurting the plaintiff?
      As plaintiff prepared to sit, defendant—a five-year-old boy—pulled out the chair from beneath her. Plaintiff fell and fractured her hip. Defendant argued that he had no intent to hurt the plaintiff nor cause her to fall, and that he took the chair to seat himself on it and for no other purpose.
    2. 2.2 Show/Hide More Picard v. Barry Pontiac-Buick, Inc.--"The Camera Toucher"
      Original Creator: Jonathan Zittrain Current Version: Lydia Lichlyter
      Should intentional contact with an object attached to the plaintiff constitute battery? For the tort of assault, should we consider if defendant intended to cause apprehension in the plaintiff?
      Plaintiff received contradictory results from safety inspections conducted by defendant and another automobile service provider. When plaintiff attempted to photograph the defendant for a local news “troubleshooter” report, defendant touched the camera and protested the picture-taking.
    1. 3.2 Show/Hide More CFTC: Petition for Rulemaking concerning the requirements of "Actual Delivery"
      As part of such rulemaking, the Commission is requested to promulgate the elements that are necessary to satisfy the requirements of “actual delivery” under CEA 2©(2)(D)(iiXIID as applied to leveraged or financed retail cryptocurrency transactions. ‘We believe this is warranted because the Commission has not articulated these elements with respect to the newly developing cryptocurrency and blockchain marketplaces, which may have unique attributes that would suggest a different approach relative to the more traditional markets under the Commission's jurisdiction. Absent a definitive Commission statement identifying the essential elements, market participants must attempt to discern what is lawful and what is problematic through assessments of enforcement orders, which are focused on a single entity at a time and may or may not be instructive.

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September 18, 2015

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Lydia Lichlyter


Harvard Law School

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