6 Part I. Protecting Property and Body

Thus far, the standards of tort liability you’ve learned about have hinged on fault or policy fiat based on determinations of levels of risk. With these materials, we shift gears and introduce different inquiries into the conduct of the defendant, as well as the intentionality behind that conduct. Tort law defines intent in a particular way along a spectrum of volition. A person who intends to act in a given way satisfies the intent requirement for many of the intentional torts regardless of whether they intended the harm that their action caused. It’s somewhat like mens rea in criminal law, with which you may be familiar, in that it’s a required mental state that must be proven for any claim in this domain. To make out a claim for an intentional tort, the plaintiff must prove the necessary intent level required for that claim.

In addition, while there is overlap in the kinds of interests that negligence and strict liability protect, the intentional torts protect additional interests that are critically important to the system of tort law. Framing the interests accurately becomes much more important in the intentional torts, which tend to require satisfaction of rigid criteria for a claim to succeed, but which tend to protect interests more broadly than negligence or strict liability do. For instance, the tort of battery does not protect merely against physical harm, the way negligence and strict liability do. This tort protects bodily autonomy, which means that a plaintiff can sue for the invasion of that autonomy even if they’ve suffered no physical harm.

Similarly, the tort of trespass to land protects against something more than just harm to land; it protects against one’s ownership in the land and right to use it. A plaintiff can sue for trespass even if nothing happens to harm their land, merely because property ownership allows owners to stop people from coming onto their land without permission. The interest tort law is protecting runs deep and reflects normative judgment about what society values and believes.

For that reason, tort law’s protection of one’s bodily autonomy and one’s home or property may make intuitive sense. Yet tort law is somewhat idiosyncratic about what it chooses to protect. It has historically been less protection of violations connected with feelings or one’s mental state. For most of the history of American tort law, plaintiffs couldn’t recover for emotional distress alone. Courts feared fraud and expressed concern over their inability measure genuine harm or suffering with nothing more than a plaintiff’s allegations of distress. As modern psychology made such assessments more reliable and standardized, courts were nonetheless somewhat slow to relax the limitations on recovery for emotional distress.

Scholars have noted the ways in which this sometimes reflected gendered and racist ideas, and tort law continues to need to understand and account for its internal coherence and equity. For one thing, when claims for “fright” or emotional distress succeeded, historically they were usually brought by men on behalf of women (such as a husband or father); for another, they were usually attributable to some other doctrinal justification. One of the cases in this unit, Gulf v. Luther, permits recovery by a white woman for allegedly suffering emotional distress and fright while waiting in a train station when a Black woman employed by the railway company spoke to her in a way deemed to be insulting. There are doctrines you’ll see in the case, however, that provide additional reasons for why the court might have permitted recovery despite the general rules limiting recovery for purely emotional distress. Racism and sexist tropes also play a role in the way the legal opinion proceeds and in how it construes the precedents on which it relies.

To understand tort law, it is important to observe the rhetoric used, the way that the court deals with the evidence in the case, and its unacceptable and dehumanizing treatment of the Black woman whose action is the source of the grievance. Following that, we’ll look at a case cited in Luther which demonstrates how case law entrenches racism and creates silences, systematic gaps in the record that minimize or erase the suffering of people of color and marginalized groups. None of this is comfortable to read about and it may be hard to confront. Facing these problematic legal practices is critical to understanding how the law operates as well as gaining glimpses of how to do better in listening to and amplifying marginalized voices. Even in many cases in which people of color win, often the judge, or the other parties are permitted greater voice and representation and the victorious plaintiff may be somehow silenced or almost absent, as is the case in Mulloy v. Hop Sang, the Canadian case featuring an unwanted amputation.

These cases are also meant to give you a sense of how sometimes tort law did redress some forms of social injustice; maybe not fully enough, maybe not always, but at least in some instances. In some instances, tort law can operate as a form of civil rights protection, as in Ruiz v. Bertolotti in which the court struggles to fit the fact pattern into its existing torts and yet decides not to ignore the defendant’s wrongful behavior despite the technical hurdles it must overcome to do so.

Finally, the last case in this Module, Cobbs v. Grant, provides a fact pattern that allows you to revisit negligence and test your high-level understanding of the distinctions between negligence and the intentional torts, framed against the backdrop of a medical malpractice fact pattern. It also reaffirms how the interests in battery extend well beyond the scope of a broken bone or bruise to protect a deep and robust form of patient autonomy.

Over the course of the next few classes, we will encounter sometimes painful or triggering material pertaining to race and gender, but it is material that helps us understand the scope of tort law’s reach, historically, and currently. It also helps us understand what tort law has avoided doing, and silences tort law has created by defining the suffering in society to count, or not to count, as cognizable under its doctrines.

A note about the anachronism of reading older cases: these cases remain relevant for today’s learning but reading them requires that we adopt some respectful norms of discourse. Older cases use terms that are out of date and sometimes downright offensive. Your class may develop ground rules for how to discuss sensitive issues, or address class norms in the syllabus. These suggestions offer an alternative, but please follow your course’s conventions if those are explicitly provided.If you are reading from an opinion, you may quote the case language verbatim if you need to do so. Some students may feel that doing so is always unnecessary or triggering, but law school requires that students learn to summarize and paraphrase accurately and in some cases verbatim quotation is the safest or most accurate or efficient means of proceeding. Other students may feel that if it’s in the opinion, it is language that can be used with impunity. In addition to these contrasting views, Professors may also wish to meet their pedagogical goals and hold a stimulating conversation without sacrificing an entire class only to the problems of controversial terminology. Your professor will decide how much attention to give this issue, of course, and whether to set groundrules for class discussions. Unless otherwise instructed, I encourage you to consider the following.If you are paraphrasing or describing the case, do not use the offensive term; use 21st century terms instead. For example, in the Texas cases below, instead of using the terms it uses (“colored” and “Negro woman”), use the contemporary terms, “African American” or “Black” unless you are reading the exact language of the case. Lawyers cannot and should not shrink from the ugliness in our laws whether it is historical or contemporary. As they consider how to increase equity in the legal system, law students should keep in mind that refraining from critiquing racist legal statements or concepts embedded in our laws amounts to ratifying them through silence. However, I invite you to be thoughtful about whether and when hateful or offensive language needs to be read aloud. It is painful for many to hear judicial language that encodes and authorizes racism and other forms of discrimination, especially without explicit censure that signals a break with that past.

Questions for the Readings

As you read the next few cases, please keep the following questions in mind:

• Why does it matter if an action is brought in negligence versus the intentional torts?
• What interests does each of the domains protect, and what sorts of conduct does each regulate?
• What do you observe about how culpability is defined and determined?
• What do you note about the rhetoric, and judicial voice, in these opinions?

The Tort of Trespass

“A trespasser is a person who enters or remains upon land in the possession of another without a privilege to do so created by the possessor’s consent or otherwise.” Restatement Second of Torts Sec. 329.

For a plaintiff to succeed in bringing a claim of trespass, they will need to prove the following elements:

• unauthorized entry upon land
• with intent

If a person enters the land of another, moving with the required level of intentional, that entry is a trespass if it was made without permission or beyond the permission granted. The mail carrier has a privilege to enter upon land to deliver and retrieve mail, for instance, but it is a trespass if when they drop off the mail they also pick flowers from the garden or plant seeds for the benefit of the owner. A vacationer who rents a home for a month is permitted there during that time but staying any amount of time past the checkout date triggers the start of a trespass.

In the full Module on the intentional torts, you will learn more about the intent requirement. In brief, if the defendant intended to move and then trespassed through that movement, intent is satisfied. Stating that she lost her way will not help the defendant: the intent required is the intent to move forward in space and to be where one is (even if it is not where one thought that was). Mistake does not invalidate intent because the intent is not directed at knowledge of the land’s boundaries but rather at the volitional movement. Nonvolitional movement does not satisfy the intent requirement. If the defendant was drugged and dropped on someone else’s land or catapulted onto someone else’s land the intent element for trespass is not met. In a certain sense, trespass can be seen as analogous to strict liability in that if a person appears without permission on the land of another, they are technically trespassing, regardless of their fault or intent, so long as they arrived there by their own volition. The next case pushes that notion to its outer limit and synthesizes important principles of intent and causation.

Guille v. Swan, Supreme Court of New York (1822)

(19 Johns. 381)

[Editor’s note: please note that the Supreme Court of New York is a trial court, not the highest court in that state. Somewhat confusingly, New York’s highest court is called the Court of Appeals.]

[Rule:] If an act done cause immediate injury, whether it be intentional or not, trespass lies; ^{and if done by the co-operation of several persons, all are trespassers, and all may be sued jointly, or one is liable for the injury done by all; but it must appear that they acted in concert, or that the act of the one sued, ordinarily and naturally, produced the acts of the others.}

[Application and Holding:] As, where the defendant, G., ascended in a balloon, which descended a short distance from the place of ascent, into the plaintiff’s garden; and the defendant, being entangled, and in a perilous situation, called for help, and a crowd of people broke through the fences into the plaintiff’s garden, and beat and trod down his vegetables and flowers: Held, that though ascending in a balloon was not an unlawful act; yet, as the defendant’s descent under the circumstances, would ordinarily and naturally draw the crowd into the garden, either from a desire to assist him, or to gratify a curiosity which he had excited, he was answerable in trespass for all the damage done to the garden of the plaintiff.

In error, on certiorari, to the Justices’ Court in the city of New-York. Swan sued Guille in the Justices’ Court, in an action of trespass, for entering his close, ^{and treading down his roots and vegetables, &c. in a garden in the city of New-York. The facts were, that Guille ascended in a balloon in the vicinity of Swan’s garden, and descended into his garden. When he descended, his body was hanging out of the car of the balloon in a very perilous situation, and he called to a person at work in Swan’s field, to help him, in a voice audible to the pursuing crowd. After the balloon descended, it dragged along over potatoes and radishes, about thirty feet, when Guille was taken out. The balloon was carried to a barn at the farther end of the premises. When the balloon descended, more than two hundred persons broke into Swan’s garden through the fences, and came on his premises, beating down his vegetables and flowers. The damage done by Guille, with his balloon, was about 15 dollars, but the crowd did much more. The plaintiff’s damages, in all, amounted to 90 dollars. It was contended before the Justice, that Guille was answerable only for the damage done by himself, and not for the damage done by the crowd. The Justice was of the opinion, and so instructed the jury, that the defendant was answerable for all the damages done to the plaintiff. The jury, accordingly, found a verdict for him, for 90 dollars, on which the judgment was given, and for costs.}

SPENCER, Ch. J., delivered the opinion of the Court.

The counsel for the plaintiff in error [Editor’s note: this is now the defendant, Guille] supposes, that the injury committed by his client was involuntary, and that done by the crowd was voluntary, and that, therefore, there was *382 no union of intent; and that upon the same principle which would render Guille answerable for the acts of the crowd, in treading down and destroying the vegetables and flowers of S., he would be responsible for a battery, or a murder committed on the owner of the premises.

The intent with which an act is done, is by no means the test of the liability of a party to an action of trespass. If the act cause the immediate injury, whether it was intentional, or unintentional, trespass is the proper action to redress the wrong. It was so decided, upon a review of all the cases, in Percival v. Hickey. (18 Johns. Rep. 257.) Where an immediate act is done by the co-operation, or the joint act of several persons, they are all trespassers, and may be sued jointly or severally; and any one of them is liable for the injury done by all. To render one man liable in trespass for the acts of others, it must appear, either that they acted in concert, or that the act of the individual sought to be charged, ordinarily and naturally, produced the acts of the others.

The case of Scott v. Shepard, (2 Black. Rep. 892) is a strong instance of the responsibility of an individual who was the first, though not the immediate, agent in producing an injury. Shepard threw a lighted squib, composed of gunpowder, into a market house, where a large concourse of people were assembled; it fell on the standing of Y., and to prevent injury, it was thrown off his standing, across the market, when it fell on another standing; from thence, to save the goods of the owner, it was thrown to another part of the market house, and in so throwing it, it struck the plaintiff in the face, and, bursting, put out one of his eyes. It was decided, by the opinions of three Judges against one, that Shepard was answerable in an action of trespass, and assault and battery. De Grey, Ch. J., held, that throwing the squib was an unlawful act, and that whatever mischief followed, the person throwing it was the author of the mischief. All that was done subsequent to the original throwing, was a continuation of the first force and first act. Any innocent person removing the danger from himself was justifiable; the blame lights upon the first thrower; the new direction and new force, flow out of the first force. He laid it down as a principle, *383 that every one who does an unlawful act, is considered as the doer of all that follows. A person breaking a horse in Lincolns-Inn-Fields, hurt a man, and it was held, that trespass would lie. In Leame v. Bray, (3 East Rep. 595,) Lord Ellenborough said, if I put in motion a dangerous thing, as if I let loose a dangerous animal, and leave to hazard what may happen, and mischief ensue, I am answerable in trespass; and if one (he says) put an animal or carriage in motion, which causes an immediate injury to another, he is the actor, the causa causans.

I will not say that ascending in a balloon is an unlawful act, for it is not so; but, it is certain, that the æronaut has no control over its motion horizontally; he is at the sport of the winds, and is to descend when and how he can; his reaching the earth is a matter of hazard. He did descend on the premises of the plaintiff below, at a short distance from the place where he ascended. Now, if his descent, under such circumstances, would, ordinarily and naturally, draw a crowd of people about him, either from curiosity, or for the purpose of rescuing him from a perilous situation; all this he ought to have foreseen, and must be responsible for. Whether the crowd heard him call for help or not, is immaterial; he had put himself in a situation to invite help, and they rushed forward, impelled, perhaps, by the double motive of rendering aid, and gratifying a curiosity which he had excited. Can it be doubted, that if the plaintiff in error had beckoned to the crowd to come to his assistance, that he would be liable for their trespass in entering the enclosure? I think not. In that case, they would have been co-trespassers, and we must consider the situation in which he placed himself, voluntarily and designedly, as equivalent to a direct request to the crowd to follow him. In the present case, he did call for help, and may have been heard by the crowd; he is, therefore, undoubtedly, liable for all the injury sustained.

Judgment affirmed.

Note 1. This is an action formally brought in trespass rather than negligence or strict liability partly because in 1822, American tort law was still in its infancy and trespass provided a direct means to analyze the invaded interests. However, under the later-published Restatement Sections 519 (applying strict liability to ultra-hazardous activities) and 520 (defining ultra-hazardous activities), flying an air balloon would now require imposition of strict liability. Indeed, in the comments to Section 520, aviation is provided as a quintessential example though, as the following dicta make clear, that could always change depending on the calculus of risk and available precautions involved in the activity:

[Aviation in its present state of development is ultrahazardous because the best constructed and maintained aeroplane is so incapable of complete control that flying creates a risk that the plane even though carefully constructed, maintained and operated, may crash to the injury of persons, structures and chattels on the land over which the flight is made’ (emphasis supplied). And in comment ‘g’ a distinction is made between airplanes and automobiles, upon the ground that ‘the use of automobiles has become so common to the great mass of inhabitants of the United States and the residuum of risk which cannot be eliminated by careful driving and maintenance is so small that the driving of ordinary types of automobiles is not regarded as ultra-hazardous. On the other hand, aviation has not as yet become either a common or essential means of transportation. This, coupled with the fact that as yet aeroplanes have not been so perfected as to make them subject to a certainty of control approximating that of which automobiles are capable, and with the serious character of harm which an aeroplane out of control is likely to do to persons, structures or chattels on the land over which it flies make it proper to regard aviation as an ultra-hazardous activity.’”) Wood v. United Air Lines, Inc., 223 N.Y.S.2d 692, 696–97 (Sup. Ct. 1961), aff’d sub nom. Wood v. United Air Lines, 226 N.Y.S.2d 1022 (1962)

Note 2. Commentators and later cases often treat the case as having decided the trespass under strict liability. Do you see why, based on the court’s legal reasoning?

Note 3. The defendant tries to distinguish the defendant’s conduct as “involuntary” and the crowd’s as “voluntary,” but the court rejects this. How and why?

Note 4. Do you think the balloonist knew, or should have known this was an outcome that was possible? Or even likely? How might it affect your thinking one way or another?

Check Your Understanding

True/False: Guille would likely have been decided differently if Guille had not asked a man in Swan’s field for help.

• True
• False

Answer: False. The crowd rushing to help or to see his adventures Guille was foreseeable, regardless of whether he called out to the one man or beckoned to the entire crowd for help. Indeed, he had apparently publicized his flight widely so as to generate interest and attract a crowd wherever he should land. Later in the course, you will learn the phrase “danger invites rescue.” That phrase, coined by Judge Cardozo, gave rise to the rescue doctrine: the idea that the person whose negligence or otherwise risky behavior places another in danger will not only be liable for harm their negligence caused to that first individual, but also for harm done to anyone who was injured in the course of rescuing that person.

Multiple choice: Why did the court draw the comparison between Guille’s facts and the facts in Shepard, described in the passage below? Select an answer that best captures the function served by the court’s use of this precedent.

Shepard threw a lighted squib, composed of gunpowder, into a market house, where a large concourse of people were assembled; it fell on the standing of Y., and to prevent injury, it was thrown off his standing, across the market, when it fell on another standing; from thence, to save the goods of the owner, it was thrown to another part of the market house, and in so throwing it, it struck the plaintiff in the face, and, bursting, put out one of his eyes.

A. Analogy: to show ballooning is just as dangerous as squib-throwing, the defendant’s conduct was unlawful, and thus all mischief that ensues is traceable to the defendant.

B. Distinction: to show that balloonist should not be held to the same principles as someone who intentionally traffics in dangerous products and causes mischief.

C. Analogy: to show that regardless of the lawfulness of the initial act, the causation principle it cites (“causa causans”) is more important than the intent of the act, and both squib-thrower and balloonist are liable for all the mischief their act causes.

D. Distinction: regardless of whether the harm caused was natural and direct, because of the “causa causans” rule, the balloonist is liable on different grounds than the squib-thrower: the crowd’s involvement here.

A is incorrect because even though the last clause is clearly a part of the court’s ruling (“all mischief that ensues, etc.”), the court grounds this in an analogy that avoids finding ballooning to be an unlawful act.

B is incorrect because although the court makes a distinction between lawful ballooning and unlawful squib-throwing, the court did not rely on that distinction in order to exculpate the defendant; instead, it treated that distinction as irrelevant.

C is correct because the squib-throwing example illustrates causa causans well, and that principle is applied to the balloonist’s actions, even though there are some differences between them (the lawfulness and intent of the original act). Put another way, the court analogizes between an intentional and unlawful act (squib throw) and an intentional and lawful act (ballooning) in order to show that in both cases, the original actor should be held liable for the ultimate harm caused regardless of the fact that other parties were intermediaries between the defendants’ acts and the ultimate harm (hence Answer C’s language stating the causation principle is “more important” than the differences in the facts of the two cases). For more on causa causans, please see the footnote on page [55] of your text.

D is incorrect because this answer suggests that there is a material difference between the crowd’s involvement in Guille and the secondary squib-thrower described in Shephard. To the contrary, the court in Guille invokes the Shephard fact pattern precisely because both cases show that the original actor is liable for harm caused indirectly by them, where they involve other actors who foreseeably exacerbate the harm they set into motion.

Multiple choice: A homeowner has a leaky hot water heater and calls an emergency plumber to see whether her hot water tank needs replacing. When the plumber arrives, the homeowner shows the plumber to the water heater, which is located in the garage, and says “Please do whatever you need to do to test, and if necessary, replace the water heater; don’t worry about the cost. I will be in the room across the hall, taking a phone call for work. If you truly need me, please knock on the door and I can answer any questions you have. I’ll be back out in a couple of hours to check on your progress.”

Which of the following is the likeliest to be a technical trespass:

A. The plumber’s apprentice enters the garage to assist with the replacement.

B. The plumber knocks on the homeowner’s door, and when she opens the door, he asks if he can help himself to water in the kitchen. She nods and points down the hall. It’s a hot day, and the plumber opens the freezer to retrieve some ice in addition to his water.

C. While in the bathroom to gauge the shower’s water temperature, the plumber notices that the toilet tank has a slow leak. The plumber opens the top of the toilet tank and adjusts the chain, which fixes the problem for free.

D. None of the above.

Answer: C. While fixing the slow leak in the bathroom may have been beneficial, it was beyond the scope of the homeowner’s consent (like the mailman example on page [54] of your text, and also analogous to the wrong ear hypo on page [60], which applies the same principle to battery).

• The next best Choice, B, is not a trespass because in their first interaction, the homeowner specifically allowed the plumber to enter the home in order to knock on her door, and then further granted consent for the plumber to help himself to water from the kitchen. Some of you might have selected this answer (because getting water probably implies running the faucet, it might even imply getting a pitcher of filter water out of the fridge, but getting ice, which he hadn’t expressly asked to do, involves opening the freezer, a slightly more invasive step than merely running the water from a sink). The facts might matter a little bit, but when granting the plumber permission to get water, the owner should have foreseen that retrieving ice might happen, especially in hot weather (at least in this country, where drinking bracingly cold water is common). Put another way, opening the freezer to get ice was a foreseeable component of the activity that the homeowner consented to when she nodded and pointed down the hall. If he had opened the fridge and cracked open a beer of the owner’s that would have been a different story. It’s also true—for you sticklers out there—that ice is water, so there is a very literal argument that she expressly consented to the activity that the plumber eventually did (though a glass of water and a glass of ice are not the same, in spite of their commonalities). It’s okay to be technical or literal so long as interpretations don’t get cutesy. If there were a bottle of (hypothetical) “Water”-brand vodka, for example, on the dining table, nobody would assume that the owner meant “help yourself to a whole glass of my vodka, especially while on the job for me” even if the word water could be stretched to mean two things.
• A is incorrect because the owner granted the plumber permission to do whatever was necessary to fix the water heater in the garage and the scope of that consent reasonably permits an assistant to enter the garage.

The Tort of Battery

For a plaintiff to succeed in bringing a claim of battery, they will need to prove the following elements: 

• unauthorized bodily contact by the defendant, which is
• harmful or offensive in nature, and
• made with intent by the defendant.

Battery is the most significant intentional tort in terms of protecting individual rights to bodily autonomy and freedom from invasions and harms by others. The quintessential element in a civil battery is that it violated the victim’s consent either by being entirely unauthorized or by exceeding the scope of the consent the victim granted the tortfeasor. The conduct doesn’t have to be “harmful” in the sense of leaving bruises or scars; it may be harmful in other ways because it is traumatizing, or precisely because the physical harms are not as readily discernible.

Note that battery does not necessarily require physical harm: the tort does not protect only against harm to the body; it protects the person’s right to decide what can be done to their body. And it doesn’t protect against accidental bumps or jostles in the ordinary course of moving around in today’s often crowded world. But it does provide protection for a person’s physical autonomy, which is a broader interest than mere protection against bruises or broken bones.

Tortious contact may also qualify as “offensive.” While there is undeniably a subjective element here, a plaintiff cannot simply claim any contact at all was offensive; there are some settled cases as well as state laws that tend to define what makes the contact offensive, such as by stating that the contact was done without authorization and with anger or rudeness. Where there is no lasting or discernible harm so as to make the contact “harmful” but it is provably “offensive,” a court may order “nominal damages.” These are damages in name only, or damages not designed to compensate monetarily but instead to provide an official recognition of the invasion of the plaintiff’s bodily autonomy and to deter future wrongdoing. While one could argue that nominal damages are not worth the costs of litigation, they remain an important way of signaling the boundaries of duties and rights between parties. Sometimes nominal damages may be accompanied by payment of legal fees to the winning party, which can make a significant difference.

The following hypothetical provides an illustration.

Hypothetical: Wrong Ear Surgery Problem

In the early 1900s, an experienced and reputable ear doctor saw a woman complaining of a problem in her right ear. As is customary, he examined both ears. He couldn’t make a full diagnosis of the left ear (“owing to foreign substances therein.” Consider yourselves warned: tort law will often feel a little TMI). The right ear revealed that there was a perforation in the lower portion of the drum membrane and a large polyp in the middle ear which indicated that some bones of the middle ear were probably diseased. The patient was nervous about undergoing general anesthesia, which remains risky in 2020 but was riskier still at that time. After consulting with her family doctor, who agreed to be in the room during the surgery, and after several other consultations with the surgeon who would repair her right ear, she agreed to go forward with the surgery. During the surgery, when he could get a better look at it, the surgeon discovered that the right ear wasn’t in need of the surgery, but the left ear was. The surgeon showed the family doctor, who agreed with this assessment, and then the surgeon went ahead and performed skillful surgery on the left ear. After the surgery, the patient was upset to learn that the surgery had not been done as scheduled on her right ear, and had happened instead on her left ear, which had not been described to her as diseased in any way before that. She complained of new pain and hearing problems apparently not present before the surgery, or at least not serious enough for her to bring then to her doctor then. She sued for battery, but not medical malpractice.

Practice applying the elements of battery (listed above). Can you see why there is a battery here?

Note 1. This hypothetical fact pattern was based on a classic torts case that is still the leading case nationally on consent to unauthorized operations. Mohr v. Williams, 95 Minn. 261 (Minn. 1905). The court ruled in Mohr’s favor, finding a battery and awarding Mohr $14,322.50, a huge sum in that era. The surgeon successfully appealed the damages award, and the new trial produced the considerably lower award of $39 for the plaintiff. (The opinion was later overruled on the issue of remittitur in Genzel v. Halvorson, 248 Minn. 527, 80 N.W.2d 854 (1957).)

Note 2. Ms. Mohr’s original damages award, of $14,322.50 would equal $417,295.80 in today’s currency, using a basic tool to account for inflation. ^{Similarly, $39 in U.S. dollars from 1905, when Mohr was decided, is roughly equivalent to $1,136.29 in 2020 U.S. dollars. When adding the expenses of hiring counsel to bring not just one, but two lawsuits, including an appeal of the first, does this seem like a fair outcome? Recall that the court found there was a battery “on the merits” (on the legal question at issue), but also that there did not appear to be any errors or lack of skill by the surgeon.}

Note 3. Mohr’s reasoning, included below, helps demonstrate the interests protected by the tort of battery. The court emphasize the law’s commitment to a patient’s right to bodily autonomy, including making medical decisions for themselves:

This particular question is new in this state. At least, no case has been called to our attention wherein it has been discussed or decided, and very few cases are cited from other courts. We have given it very deliberate consideration, and are unable to concur with counsel for defendant in their contention that the consent of plaintiff was unnecessary. The evidence tends to show that, upon the first examination of plaintiff, defendant pronounced the left ear in good condition, and that, at the time plaintiff repaired to the hospital to submit to the operation on her right ear, she was under the impression that no difficulty existed as to the left. In fact, she testified that she had not previously experienced any trouble with that organ. It cannot be doubted that ordinarily the patient must be consulted, and his consent given, before a physician may operate upon him.

It was said in the case of Pratt v. Davis…: ‘Under a free government, at least, the free citizen’s first and greatest right, which underlies all others—the right to the inviolability of his person; in other words, the right to himself—… necessarily forbids a physician or surgeon, however skillful or eminent, who has been asked to examine, diagnose, advise, and prescribe (which are at least necessary first steps in treatment and care), to violate, without permission, the bodily integrity of his patient by a major or capital operation, placing him under an anaesthetic for that purpose, and operating upon him without his consent or knowledge.’

1 Kinkead on Torts, § 375, states the general rule on this subject as follows: ‘The patient must be the final arbiter as to whether he will take his chances with the operation, or take his chances of living without it. Such is the natural right of the individual, which the law recognizes as a legal one, Consent, therefore, of an individual, must be either expressly or impliedly given before a surgeon may have the right to operate.’

There is logic in the principle thus stated, for, in all other trades, professions, or occupations, contracts are entered into by the mutual agreement of the interested parties, and are required to be performed in accordance with their letter and spirit. No reason occurs to us why the same rule should not apply between physician and patient. If the physician advises his patient to submit to a particular operation, and the patient weighs the dangers and risks incident to its performance, and finally consents, he thereby, in effect, enters into a contract authorizing his physician to operate to the extent of the consent given, but no further. It is not, however, contended by defendant that under ordinary circumstances consent is unnecessary, but that, under the particular circumstances of this case, consent was implied; that it was an emergency case, such as to authorize the operation without express consent or permission.

The medical profession has made signal progress in solving the problems of health and disease, and they may justly point with pride to the advancements made in supplementing nature and correcting deformities, and relieving pain and suffering. The physician impliedly contracts that he possesses, and will exercise in the treatment of patients, skill and learning, and that he will exercise reasonable care and exert his best judgment to bring about favorable results. The methods of treatment are committed almost exclusively to his judgment, but we are aware of no rule or principle of law which would extend to him free license respecting surgical operations. Reasonable latitude must, however, be allowed the physician in a particular case; and we would not lay down any rule which would unreasonably interfere with the exercise of his discretion, or prevent him from taking such measures as his judgment dictated for the welfare of the patient in a case of emergency.

Note 4. Ms. Mohr continued to complain of pain in her left ear. Should tort law be the source of her remedy, and if so, why? What does your answer depend on?

Note 5. What sorts of additional facts do you think might have made it reasonable for Dr. Williams to operate on Ms. Mohr’s left ear, even without her consent?

Note 6. Do you see why this is not a medical malpractice case?

Note 7. What do you imagine are the consequences of a ruling like this, in terms of physician behavior and the practices adopted by institutions such as hospitals?

Check Your Understanding

True/false: Trespass and battery are both intentional torts which require plaintiffs to show harm.

• True
• False

Answer: False. While they are both intentional torts, neither requires a showing of harm.

True/false: Trespass and battery are both intentional torts which can attach to behavior even when the plaintiff provided consent, if the conduct ultimately exceeds the scope of the plaintiff’s consent.

• True
• False

Answer: True. Trespass and battery are both intentional torts which can attach to behavior even when the plaintiff provided consent, if the conduct ultimately exceeds the scope of the plaintiff’s consent; see page [53, 59] of the text.

Mulloy v. Sang, Alberta Supreme Court, Appellate Division (1935)

(1 W.W.R. 714)

The plaintiff’s claim is for professional fees for an operation involving the amputation of the defendant’s hand which was badly injured in a motor-car accident. The accident took place near the town of Cardston and the defendant was taken to the hospital there. The plaintiff, a physician and surgeon duly qualified to practice, was called to the hospital and the defendant, being a stranger and unacquainted with the plaintiff, asked him to fix up his hand but not to cut it off as he wanted to have it looked after in Lethbridge, his home city. Later on in the operating room the defendant repeated his request that he did not want his hand cut off. The doctor, being more concerned in relieving the suffering of the patient, replied that he would be governed by the conditions found when the anaesthetic had been administered. The defendant said nothing. As the hand was covered by an old piece of cloth and it was necessary to administer an anaesthetic before doing anything, the doctor was not in a position to advise what should be done. On examination he decided an operation was necessary and the hand was amputated.

Dr. Mulloy said the wounds indicated an operation as the condition of the hand was such that delay would mean blood poisoning with no possibility of saving it. In this he was supported by the two other attending physicians. I am, however, not satisfied that the defendant could not have been rushed to Lethbridge where he evidently wished to consult with a physician whom he knew and relied on. Dr. Mulloy took it for granted when the defendant, a Chinaman without much education in English and probably not of any more than average mentality, did not reply or make any objection to his statement that he would be governed by conditions as he found them, that he had full power to go ahead and perform an operation if found necessary. On the other hand, the defendant did not, in my opinion, understand what the doctor meant, and he would most likely have refused to allow the operation if he did. Further, he did not consider it necessary to reply as he had already given explicit instructions.

Under these circumstances I think the plaintiff should have made full explanation and should have endeavoured to get the defendant to consent to an operation, if necessary. It might have been different if the defendant had submitted himself generally to the doctor and had pleaded with him not to perform an operation and the doctor found it necessary to do so afterwards. The defendant’s instructions were precedent and went to the root of the employment. The plaintiff did not do the work he was hired to do and must, in my opinion, fail in his action.

The defendant has counterclaimed for damages in the sum of $400, being $150 for an artificial hand and the balance for loss of wages due to the operation and possibly general damages.

In my opinion the operation was necessary and performed in a highly satisfactory manner. Indeed, there was no suggestion otherwise. The damage and loss and the cost of an artificial hand are the results of the accident and not the unauthorized operation. The defendant, however, is, in my opinion, entitled to damages because of the trespass to the person, which at the same time became trespass ab initio, having in mind the old case of The Six Carpenters (1610) 8 Co. Rep. 146a, 77 E.R. 695. The damages are per se and should be more than nominal. Personally, I in a similar position might have been able to satisfy myself that the operation was necessary, and that I should be glad to pay the reasonable fee charged, but it was not my hand and the defendant will always no doubt feel that he might have saved the hand if he had consulted with a doctor he knew. While I might have been able to forego my rights, I cannot ask the defendant to do so and he is entitled to rely on his rights. There also must have been some shock to him when he found out his hand had been taken off in the manner in which it was, over and above the ordinary shock from an operation. His damages, should, therefore, be substantial but only sufficient to make them substantial rather than nominal. I place the amount at $50.

The action is dismissed with costs and the defendant is entitled to his costs of the counterclaim.

Note 1. Using the same inflation calculator and basic assumptions, the $50 Hop Sang was awarded for his wrongfully removed hand in 1822 produces a value of roughly $921.62 in today’s Canadian dollars. ^{Even if we assumed Sang had been awarded $10,000 in today’s Canadian dollars, do you think that would provide adequate compensation for the injury? Why or why not? Is there a number at which your answer changes?}

Note 2. The judicial voice speaks for Sang at several points, imagining what the plaintiff might have thought or felt and distinguishing his own views (“Personally, I in a similar position… but it was not my hand”; “While I might have been able to forego my rights, I cannot ask the defendant to do so”). Why do you think he does not cite to the plaintiff’s own testimony on these issues? What other observations do you have about the way the court describes both the plaintiff’s views and his own about the surgery?

Exam Tip: In the case of both trespass and battery, often the conduct in question qualifies as a violation because it exceeds the scope of consent. For instance, at the end of a dinner party, a guest leaves, but secretly sits in the driveway, just out of sight of the hosts, to sober up before driving. Technically, the social event has ended, and their permission to remain on the host’s land is unclear. Or to take another example, a romantic partner usually allows their partner to hold their hand all the way through the movie but doesn’t want to this time. The attempt to withdraw the hand signals that consent is withdrawn and a second attempt to shake free of the grip, when their partner is still holding onto their hand, makes that desire clear: any remaining contact from that point is technically a battery. Sometimes such instances may be called technical trespass or a technical battery, for which, as noted above, the damages may be nominal or minimal (depending on the precise facts). But the liability will still attach even if the damages are low or non-existent.