The Pervasive and Elusive, Momentous and Mysterious Law (Part 2 of 3)

An event has happened, upon which it is difficult to speak, and impossible to be silent.

— Edmund Burke (in a speech in May 1789 favoring an impeachment)

He who knows only his own side of the case, knows little of that.

— John Stuart Mill (On Liberty, 1859)

Any human society unavoidably experiences internal conflicts, all the way up to the kind that—recalling Thomas Paine—try our very souls. All internal conflicts strain and in the extreme threaten their society. Therefore, the greatest test of a society is to maintain its fellowship in spite of perennial internal dispute. And while physical confrontation in kind is the age-old solution, law is nearly as old (small wonder) and the rule of law stands today as the much preferred means to defend and preserve social order.

In general law is founded, and here we can see its true genius, in the anticipation of (not simply in the reaction to) conflict. Law aims to foresee and, as much as possible, forestall social disputes. That means at the least prohibiting the infliction of many kinds of insult and injury, and beyond that encouraging in certain cases and dictating in others that people conduct their everyday lives in specific ways (such as being careful when driving through a neighborhood where children are playing—lest a civil wrong result—and in all events driving only when sober and only on one side of the road and only at the designated speed—lest a criminal act occur). In essence, law structures the functioning of a given society from its most gross collective character to its most fine individual trait.

Nonetheless, in its most exacting form that is a (civil or criminal) trial, law is a cousin of physical confrontation if a comparatively mild-mannered one. Two or more disputants face off in a mental contest of reason (if still fringed with emotion). But the reasoning is not a free-for-all; it is directed to and accordingly also constrained by the relevant law. The purpose in this regard is to ascertain to what extent established and well-settled law dictates how the dispute is to be concluded, and where the law is in any way deficient or unsettled, how the law should then be understood and applied to decide and (physically) conclude the conflict—by dismissing or awarding a claim of damages, or by acquitting or convicting of a crime, but in every case requiring everyone involved to accept and obey the consequences.

But what is most critical in this process, more so than even the fact of resolution, is the intellectual integrity of the entire proceeding. The fundamental role of lawyers and judges and juries is to be the guardians of this intellectual integrity. Still, that principled role is often underappreciated by the general public, especially when it comes to lawyers. The reason is due to lawyers’ adversarial nature—they “take sides” in every conflict and can only be seen as decidedly biased in favor of their clients and decidedly prejudiced against “the other side.”

All too true. But the bald fact of conflict necessitates this adversariness. As long as each side in a dispute sincerely believes it is “in the right” and the other side is “in the wrong”—despite the efforts at compromise and settlement in the meantime—then each side is and should be free to continue to press its point of view. Ultimately, the only way of resolving the matter is to have a formal trial in which reliable evidence such as sworn testimony and verified exhibits can then be evaluated in accordance with legal principles with the result that one side or the other or both to some degree end up vindicated. Each lawyer’s duty is to make the best assessments and arguments possible as to why, based on all the evidence and the relevant law, his or her client should prevail.

As a practical matter then, the only way for a lay person to fully appreciate the intellectual “tussle” of law is to experience it first-hand. But that does not mean simply being a witness or even one of the named parties in a trial, but being directly involved in applying the law in a trial. Of course the only real option in this regard is to be a member of a jury, which many lay persons have been and so have gained at least some fair sense of how law works.

All the same, there is just no matching the unique vantage point and responsibility of a judge.

In a trial, the lawyers can only ever offer legal arguments as to what the law is and what it requires. But the presiding judge then reflects on those legal arguments to decide, and in effect dictate, what the law is and what it requires in that case and, therefore, how the case and the dispute will be concluded. That is real power, but it remains, practically and logically, an application of law and not an exercise of fiat. Like lawyers’ arguments, judges’ decisions must be, if not always unquestionably bound by, still strongly tethered to, existing law. Otherwise, law and its processes are no better than a sham, and integrity is happenstance.

So as I promised at the end of Part 1 of this essay, I now offer you the opportunity to be a judge. Admittedly, I cannot here hope to reproduce the full reality of your sitting in a judge’s chair and listening to lawyers make every effort to sway you in the decisions you have to make. But I think I can come close, since the ultimate task of any judge is an abstract one—to understand the facts of the case, grasp the legal standards in play, and ponder the lawyers’ arguments, all in order to try to make sense of and bring some order to the very real conflict that needs to be ended.

You are a state trial court judge somewhere in America. As a trial judge, your court is where most civil and criminal cases in your district are first heard and “resolved” (subject to being appealed to the higher courts). And right now there is one case on your mind as you sit in your chambers reviewing a motion that has been filed. In fact, you will soon be entering the courtroom to convene a hearing in which the attorneys on each side will make their legal arguments to you. The case is a civil lawsuit involving a “tort.”

Of course you know that a tort is an unjustified injury caused to one person by another person. The law grants the injured person a right of redress against the person responsible, often for an award of money that counts as compensation or as punishment for the wrong. Two of the most common types of torts are “negligence” and “battery.”

Negligence is an unintentional tort; negligence occurs when a person (1) acts and ends up causing an offensive or harmful contact with another person, (2) knew or should have known there was a risk of causing such offensive or harmful contact, and (3) took the risk when a reasonable person would not have taken it. For example: Sara is in a rush to get to work and backs out of her driveway with but a glance in the rearview mirror to see if anyone is about to pass by on the sidewalk; her car strikes and injures a child on a bike.

A battery is an intentional tort; battery occurs when a person (1) acts intentionally to cause an offensive or harmful contact with another person, and (2) such contact results. Sounds straightforward, but there is a disagreement among states over what exactly must be intended: (1) only the contact, which is called the “single intent” rule, or (2) both the contact and that it be offensive or harmful, which is called the “dual intent” rule.

For example: John is incensed when a dog that Edgar is walking tries to bite him and Edgar laughs; John kicks Edgar hard in the leg and Edgar loses his balance and falls, striking the sidewalk and breaking his collarbone. John’s act is battery under either intent rule—he obviously intended to kick Edgar (good enough under the first rule), but as well intended to injure him (good enough for the second rule). It is important to understand, however, that under each rule John will be held liable for every injury Edgar suffered as a result of being kicked. It does not matter that John specifically intended to injure only Edgar’s leg, not his collarbone. The “dual intent” rule requires only that John generally intend the contact to be harmful, whatever the specific harms that then result.

You are of course familiar with both intent rules since, as it happens, the law in your state has not yet settled on which rule should be used in cases of alleged battery.

The facts that relate to the particular motion in the case you will be dealing with today are, happily, uncontested. There is only legal contention – how the law should apply to those facts, which are as follows: The defendant, Mr. Smith, and the plaintiff, Ms. Jones, are co-workers in a software company. One day at lunch the two happened to be sitting together at a cafeteria table along with other co-workers in their department – they all knew one another – when the defendant put his arm around the plaintiff’s head and pulled her towards him. The plaintiff experienced sharp pains in the back of her neck, and part of her face became and has remained partially paralyzed. The defendant acted as he did because the plaintiff, who was often reserved in manner, had stifled her laughter over an innocuous joke that everyone else was enjoying.

More than two years after this incident Ms. Jones filed the current lawsuit, whose formal complaint alleges two separate grounds for Mr. Smith’s legal liability—battery and negligence. But this pleading has a legal problem. The statute of limitations requires that claims of battery be filed within two years of the incident; claims of negligence can be filed after a longer time. (One critical reason for this difference is that intentional acts that cause harm to someone are clearly a more serious matter than unintentional acts, and it is simply not in the public interest to let the former “fester” for very long.)

Unsurprisingly, the defendant has brought the present motion to have the battery claim against him accordingly dismissed. And on this point you really have no choice. The plaintiff has given no justified excuse for having filed her complaint too late, and so you will have to bar and dismiss her claim of battery.

Would that that were all the motion sought. But it has a second part arguing that given the uncontested facts of this case, the defendant’s actions can only be alleged to be battery, not negligence, and consequently the claim of negligence, too, must be barred and dismissed, thus throwing out the entire lawsuit.

You turn to review each of the outcomes in three court cases, from different jurisdictions, that either the attorney for Mr. Smith or for Ms. Jones has called to your attention as being relevant, in one way or another, to the resolution of this motion:

Case 1 (Florida): The plaintiff was visiting the defendant, her boss, at his home to review some office paperwork, when he grabbed her and started trying to kiss her. She struggled, he would not let go, and in trying again to break free she struck her face against some hard object. Held: The defendant committed battery, not negligence, since while the defendant did not specifically intend to cause any such injury, a reasonable person in the circumstances would have known that such a harm was substantially certain to occur. (Essentially a further interpretation and application of the dual intent rule.)

Case 2 (Utah): A mentally-handicapped man—while in foster care under the State of Utah—violently assaulted the plaintiff who then sued the State of Utah for the man’s harmful acts. Held: The man committed battery, not negligence, because despite being incapable of having an intention to offend or cause harm, his physical acts were intentional (an application of the single intent rule); but as the State of Utah is immune under the law from liability for intentional torts by those under its care or supervision, the case is accordingly dismissed.

Case 3 (Colorado): The plaintiff, a supervisor at a nursing home, attempted to change the diaper of an adult resident, an elderly woman with dementia, who then struck the plaintiff on the jaw. Held: The defendant resident did not commit battery, because battery requires the intent to cause physical contact with another as well as the intent to cause offense or injury to that other (an application of the dual intent rule), and here the defendant was incapable of intending any harm; however, the defendant may be liable for negligence if her physical acts created an unreasonable risk of injury and such an injury occurred.

You enter the courtroom and convene the hearing. You nod to the attorney for the defendant, Mr. Smith, to start the oral argument, as it is his motion. (You are content to let the attorneys talk back and forth as they will, provided they do not start talking over each other. But they turn out on this occasion to be quite self-disciplined.)

Attorney for the Defendant, Mr. Smith: May it please the Court, this is surely a case of battery, not negligence. My client intentionally put his arm around plaintiff and “hugged” her head. There is just no dispute about that. And that should settle the legal question. I know there is a split among jurisdictions. Some courts define battery as simply the intent to cause a physical contact that then results in some kind of harm. But other courts require two intents—a specific intent to make physical contact and a general intent to offend or harm that person. I argue that this court should choose to follow the “single intent” rule, as it sufficiently captures the essence of a battery—the fact that the physical contact itself, which unfortunately caused harm, was intended. A person should be held responsible for any harms his fully willed and directed actions cause, regardless of his intent otherwise. That is how liability for battery works in any event, even in a “dual intent” jurisdiction. Under both standards, a plaintiff can ultimately recover damages for all injuries sustained from the intended contact, regardless of whether the defendant specifically intended to cause all of those injuries. Here, my client fully willed his action that solely caused every one of the plaintiff’s injuries, and that’s the fundamental – and dispositive! – truth of this matter.

Attorney for the Plaintiff, Ms. Jones: May it please the Court, this is surely a case of negligence, not battery. So I can well appreciate why counsel for the defendant would want to extol the “virtues” of the single-intent rule, since it is highly doubtful here that defendant had any real intent to cause offense or harm to my client. But if the Court is seriously considering applying the single-intent rule, I must point out that I believe the effect in this and future cases in this jurisdiction would be to endorse a kind of strict liability such that persons will be held liable simply on the basis of what their intentional acts bring about. I suggest that does not correspond with our general idea of fairness whereby our legal system imposes liability only for conduct that is fairly judged to be improper in some respect. Yes, in a proper case of battery a plaintiff can recover for all injuries caused, whether intended or not. But what the dual-intent rule for battery adds here, and thus ensures, is that a defendant’s willful actions are not wholly innocent, that something wrong was “already in the works” of the intended physical contact. Such a tainted action clearly explains the legal rule for negligence, too, where some “risk of harm” is present such that a defendant should have taken account of it, but then didn’t.

And this insight reveals the real and essential difference between battery and negligence. The question is much more than whether physical contact was intended or not, it is whether some wrong or harm was either intended or risked, or not. And in this case, my client’s paralysis was clearly unintended, if yet risked. And as to that specific risk, I do not think any of us could honestly claim that the injury here was otherwise “substantially certain” to occur. No, nowhere close. Hence, negligence.

Mr. Smith’s Attorney: It is very kind of plaintiff’s counsel to worry over my own client’s “innocence.” But what of plaintiff’s? Isn’t she the one who is truly innocent here? And if we are in the position of having to choose which of two “innocent” parties should bear the full burden of responsibility in this kind of case, shouldn’t it be the one who caused the harm?

In any event, I never said this case would fail to satisfy the dual-intent rule. There was dual intent here. My client did intend the physical contact. And he intended, at the very least, to give offense and some degree of harm. The fact is that he was teasing the plaintiff for being shy. That is, making fun of her, trying to embarrass her, bullying her by “hugging” her without her consent.

Which leads me to point out some relevant aspects of sexual harassment cases. Based on the pleadings and settled facts, the parties have agreed that this case is not that kind of case. But it is worth noting that the single-intent rule is very much in line with the standards now used in cases coming under the federal and many state statutes on sexual harassment in the workplace. Intent to offend or harass is not an element of proof. What matters is the intended contact and how the victim herself, or himself, regards it. My point is that if this court endorses a dual-intent rule in this case, it will run against the grain of that other, I believe more enlightened, area of law.

I think one such consequence will in fact be to make it more difficult to deal with the reprehensible sexual boor in public. A “serial kisser” can often claim to lack any intent to harm, convinced he is bestowing only pleasure on his victims. A dual-intent rule would preclude holding him responsible for a battery, which I think we can all agree he is surely committing. Similarly, what about those who are mentally impaired and are thus driven more by impulse than intent? Such a circumstance could allow them—as well as their guardians—to escape much liability for what in some cases has been very violent behavior.

Ms. Jones’s Attorney: But the fact is in those jurisdictions that follow the single-intent rule there are far too many cases of straightforward negligence that are thereby unfairly converted into battery. Which especially works a travesty for claims brought under worker’s compensation or other insurance coverage, or involve incidents in state-run facilities and the like. Many if not most insurance programs and policies exclude coverage for intentional torts, and governmental institutions are commonly held immune from such lawsuits. Yes, good news, I guess, for those most able to pay money damages but then, “Hey presto!”, don’t have to. And so in the end really bad news for the victims who stand most in need of some degree of compensation, but who are then “disqualified” from seeking it.

As for whether this case satisfies the dual-intent rule, I would say the teasing here had only a good-natured, social intent. No doubt, in pure retrospect, my client might well wish defendant had not done what he did, but what he did is certainly a common enough act of, really, well-meaning hugging, which even amounts to genuine affection in the case of strolling lovers. More to the point, it frequently occurs as a show of comradery among sports players and so would not at all be out of place among other “team” players. Here of course we had fellow workers who were taking a break, obviously sharing jokes and enjoying lunch together. The general, and frankly abhorrent, idea that I think defendant’s counsel would in the end foist on us is that among our friends and like comrades we must always follow a strict “hands-off” policy: no slaps on the back, friendly pushing, playful leaning upon, or any other common touching whatsoever. Ridiculous!

Mr. Smith’s Attorney: Well, what I think plaintiff’s counsel, at the last, is really saying is that if the Court believes this case fits the legal mold of battery, which it does by the way, then it should see this battery as having been committed . . . negligently! Come now! Seriously? How is that not still a battery?

Ms. Jones’s Attorney: Considering the degree of unintended injury we should really be concerned about here, how is that not negligence?

You thank the attorneys, adjourn court, and retire to your chambers.

The matter is now yours to decide, your Honor. (Shall I put on the coffee?)