7 Part II. Protecting the Mind: Assault and Emotional Harms
Like the tort of battery, the tort of assault must be kept distinct from its criminal counterpart. In the civil context, to bringing a successful claim of assault, the plaintiff will need to prove the following elements:
- an act, or threat of an action
- done with intent, that
- creates in the plaintiff a reasonable apprehension of
- imminent bodily harm
The scope of the tort has been critiqued for what it recognizes and excludes. The tort was intended to be construed narrowly, a true protection against harm almost immediately upon the victim, and thus many threats that promise harm in the future fall outside the scope of the tort by failing the imminence requirement. Later in the course, you will learn about the prospect of recovering for emotional damages or distress suffered without accompanying physical injuries. For now, the focus is on “fright” or more precisely, on awareness of harm that is imminent and reasonably perceived, not merely imagined.
A Note on Terminology: “Objective” versus “Subjective.” When the law uses the word “reasonable,” it is signaling its use of an objective standard. The legal meanings of “objective” and “subjective” differ from the lay meanings. Ordinarily, subjective means “influenced by personal feelings or tastes; emotional or intuitive.” Objective means not influenced by personal feelings or tastes; impersonal; fact-based; unbiased; nonpartisan; disinterested or even scientific. In law, however, subjective means particularized to the person in question; objective means abstracted to a generalized level: what would the reasonable person have felt or done under such circumstances, rather than what the plaintiff himself actually felt or did. This distinction between objective and subjective states of mind or assessments of conduct will grow in importance throughout your study of tort law. For instance, the intent standard for the intentional torts is subjective: we care what this particular defendant thought or knew when they acted. In assault, the apprehension of imminent bodily harm is objective: would an ordinary reasonable person have been placed in apprehension of harm? This allows tort law to exclude from protection someone overly sensitive who would qualify under a subjective standard (tailored to that individual) but who cannot recover if reasonable people would not share the apprehension under those circumstances. Most significant of all, negligence is determined using an objective standard: it uses a general measure based on classes of people (physicians, blind people, adults, elderly or very young people) rather than a particular defendant: what would a reasonable person have done under the circumstances, not what did this defendant believe was reasonable to do under the circumstances? Negligence broadens its scope of liability by asking not just what the plaintiff knew or did but what the reasonable person would have known or would have done. In some instances, a given tort or rule will incorporate both perspectives. For example, in battery, the perspective for whether contact is offensive is first objective: would the reasonable plaintiff find the contact offensive, not whether this plaintiff did? Once that hurdle is cleared, it is also necessary to determine whether the plaintiff did in fact find it offensive. Contact must be objectively considered offensive, at a minimum as well as subjectively, by this plaintiff, considered offensive. The rationale is straightforward: if you’re insensitive and didn’t mind the contact but know others would find it offensive, tort law does not permit you to receive a windfall by suing for something you happened not to mind. Most students find the objective/subjective distinction confusing at first but eventually manageable, partly because it’s a concept they will see over and over in torts and in other classes in their first year and beyond.
As you read the next few cases, please keep the following questions in mind:
- What interests is tort law seeking to protect? Against what sorts of harms or invasions, and by whom or what? Note where you see courts describing the interests they are protecting (or declining to protect) and put in your own words how the court justifies its decision.
- What sorts of limits can you identify in the law’s protection of these interests? How does—and how should—the law draw these limits? Why are such limits necessary?
- In what ways do these legal rulings illustrate, entrench or subvert power dynamics or social status in our society? In what ways could they be amended to create new possibilities?
- If you do not see either entrenchment or possibilities for change, would any of the cases read differently for you if the age/gender/race/ability/sexual orientation/general identity of one or more of the parties changed? Would the situation strike you as different if a corporation, instead of an individual, were one of the parties?
Background Tort Doctrines: Vicarious Liability and The Common Carrier Doctrine
Two legal doctrines will be helpful to your reading of the next case, Gulf, Colorado & Santa Fe Railway Co. v. Luther.
First, under a theory of “vicarious liability,” an employer is generally liable for the torts committed by its employees while the employees are working within the scope of their employment. As this doctrine was developing in 18th-century England, jurists labeled it with the Latin phrase, “respondeat superior,” meaning “let the person in the position of higher power respond” for the wrongdoing of the person in their employment or supervision. The terms used to characterize labor relations were “master” and “servant,” rather than the more modern employer and employee or principal and agent. Vicarious liability is a very important doctrine that you will see again several times in this course as well as in certain upper-division courses, so it’s worth taking careful note when you see it recurring.
Second, the “common carrier” doctrine historically applied to or companies engaged in the transportation of customers from place to place for compensation (such as public railroads, bus lines, taxi companies, airlines, cruise ship lines, or other similar entities). Tort law has traditionally imposed a higher standard of care on common carriers in order to protect consumers, though this has varied by state and eroded somewhat over time. In New York, for instance, there is no longer a heightened duty; common carriers owe the same duty of “reasonable care” as any other possible tortfeasors. But in the era before meaningful consumer protection laws arose in the first decades of the twentieth century, this heightened duty was an important means of ensuring passengers’ safety and comfort.
Gulf, C. & S.F. Ry. Co. v. Luther Texas Court of Civil Appeals (1905)
(40 Tex.Civ.App. 517)
This suit was brought by appellee to recover damages for an alleged insult to his wife, made by a negro woman while in appellant’s employ as a waitress in attendance on the ladies’ waiting room in the passenger station of appellant at Ft. Worth, Tex., and for alleged nervous prostration of appellee’s wife caused by such insult. The appellant answered by a general denial, and specially that the negro woman was provoked to say what she did by opprobrious epithets addressed to her by appellee’s wife. The trial of the cause resulted in a verdict and judgment against the appellant for $2,500.
Conclusions of Fact.
It is undisputed that appellant owns and operates a line of railroad extending through Hunt county to Ft. Worth, Tex., and another line of road extending from Ft. Worth to Morgan, Bosque county, Tex.; that it is, and was in August, 1903, a common carrier of passengers using said lines of railway for such purpose; that during the month of August of the year aforesaid appellant, in connection with other common carriers of passengers, was in possession, control, and use of a depot building on its roads in Ft. Worth, Tex., for the use and accommodation of its passengers, in which there was a waiting room set aside for the reception of its lady passengers and children; that this room was then entrusted by appellant to a negro woman in its employ, the duties of whose employment were to keep the room clean and in good order for its passengers, attend their wants, and minister to their comfort while awaiting passage on its trains; that in the latter part of June, 1903, the plaintiff, with his wife and four small children, having become passengers over appellant’s said lines of road from a station in Hunt county to Morgan, Tex. (the latter station being their destination), arrived at its depot in Ft. Worth about 7 o’clock in the morning for the purpose of taking one of its trains, which was due at 7:50 o’clock that morning; that plaintiff, being informed that the train was late, left his wife and children in the waiting room for women and children which was in charge of the negro woman in appellant’s employ charged with the duties aforesaid, and went out into the city to attend some matters of business.
The evidence is reasonably sufficient to prove that during plaintiff’s absence from the depot the negro woman, while in the discharge of her duties, became very angry about one of the plaintiff’s little children accidentally spilling from a cup some water on the floor, and when informed by the child’s mother, plaintiff’s wife, the spilling of the water by the child was unintentional, because the child did not know the water was in the cup, the negro woman turned upon Mrs. Luther, and what was said and done had best be told in her language: “When I told the negro woman that the child didn’t know the water was in the cup, she turned on me with an angry look, and said, ‘The child did know the water was in the cup,’ and I told her that the child did not know that the water was in the cup. Then she said to me, ‘If you say the child did not know that the water was in the cup you are a liar.’ I then said to her, ‘I have not been accustomed to be treated this way by colored people.’ She then replied: ‘I am used to your kind. I meet up with them every day.’ During the conversation she was standing right over me, shaking her finger right in my face, and looking vicious and angry. She stood over me about five minutes, and said many things to me that I cannot remember, as I was very much frightened at the time.” The negro woman testified differently as to what occurred, but, as the testimony of Mrs. Luther is corroborated by other circumstances, and as the jury from its verdict evidently believed her narration of the occurrence, we find it is true that Mrs. Luther, in consequence of the abuse and ill-treatment by the negro, was greatly frightened, humiliated, worried, and distressed, causing her nervous prostration, physical pain, and mental anguish, to plaintiff’s damage in the amount found by the verdict.
Conclusions of Law.
The first assignment of error complains of the court’s overruling defendant’s amended motion for a new trial, upon the ground that the verdict is contrary to the law and evidence and is excessive, in that it fails to show that the sickness and physical pain suffered by Mrs. Luther were proximately caused by the negligence of defendant. The outrageous conduct and language of the negro woman, whether denominated negligence or not, were, because done by her as appellant’s servant and while in the discharge of the duties of her employment, acts for which the appellant as a common carrier of passengers is responsible and liable to plaintiff for all the damages proximately flowing therefrom. That plaintiff’s wife suffered insult and indignity at the hands of appellant’s servant, and was treated disrespectfully and indecorously by her under such circumstances as to occasion mental suffering, humiliation, wounded pride, and disgrace, there can be little doubt. At least the jury might have so found from the evidence before them. And if it should be conceded that she suffered no physical injury or sickness in consequence, still the appellant would be liable for the consequences of such wrongs done to a passenger.
In considering the duties of carriers to their passengers, Hutchinson on Carriers, §§ 595, 596, states the rule as follows: “The passenger is entitled, not only to every protection which can be used by the carrier for his personal safety, but also to respectful treatment from him and his servants. From the moment the relation commences, as has been seen, the passenger is in a great measure under the protection of the carrier, even from the violent conduct of other passengers, or of strangers. … The carrier’s obligation is to carry the passenger safely and properly, and to treat him respectfully; and, if he entrusts the performance of this duty to his servants, the law holds him responsible for the manner in which they execute the trust. The law seems to be now well settled that the carrier is obliged to protect his passenger from violence and insult from whatsoever source arising. He is not regarded as an insurer of his passengers’ safety against every possible source of danger, but he is bound to use all such reasonable precaution as human judgment and foresight are capable of to make his passengers’ journey safe and comfortable. He must not only protect his passengers against the violence and insults of strangers and co-passengers, but, a fortiori, against the violence and insults of his own servants. If his duty to the passenger is not performed, if this protection is not furnished, but, on the contrary, the passenger is assaulted and insulted through the negligence or the willful misconduct of the carrier’s servant, the carrier is necessarily responsible. And it seems to us it would be a cause of profound regret if the law were otherwise. The carrier selects his own servants, and can discharge them when he pleases, and it is but reasonable that he should be responsible for the manner in which they execute their trust.”
Thompson on Negligence, § 3186, after stating the above rule, adds: “The carrier is liable absolutely, as an insurer, for the protection of the passenger against assaults and insults of his own servants, because he contracts to carry the passenger safely and give him decent treatment en route. Hence, an unlawful assault or insult to a passenger by his servant is a violation of his contract by the very person whom he has employed to carry it out. The intendment of the law is that he contracts absolutely to protect his passenger against the misconduct of his own servants whom he employs to execute the contract of carriage. The duty of the carrier to protect the passenger during the transit from the assaults and insults of his own servants being a duty of an absolute nature, the usual distinctions which attend the doctrine of respondeat superior cut little figure in the case.”
In Elliott on Railroads, § 2579, treating upon this subject, it is said: “It is not merely a question of negligence in such cases, nor is it strictly a question depending upon the scope of the servants’ particular employment. It is a question of the absolute duty of a railroad company to its passengers as long as the relation subsists, and a breach of that duty on its part, whether caused by the willful act of an employé or not. A carrier is bound to discharge the implied duty, arising out of its contract and imposed by law, that its passengers shall be protected from injury by its servants and shall not be willfully insulted and harmed by them; and, if it commits the discharge of this duty to an employé, it may well be held to do so at its peril, notwithstanding the exercise of care on its part in selecting the servants. Either the company or the passenger must take the risk of infirmities of temper, maliciousness, and misconduct of the employés whom the company has placed upon the train and to whom it has committed the discharge of its duty to protect and look after the safety of its passengers. A passenger has no control over them, and the company alone has the power to select and remove them. It is therefore but just to make the company, rather than the passengers, take this risk, and to hold it responsible. This leads to the conclusion that a railroad company is liable for an injury willfully inflicted upon a passenger by an employé while engaged in performing a duty which the carrier owes to the passenger, or in executing the contract, although the company is guilty of no negligence *522 in selecting them and such act was not strictly within the scope of their employment or line of their duty, in the sense that it was done for the carrier or arose out of the performance of their particular duty.” See also, Traction Co. v. Lane (Tenn.Sup.) 53 S.W. 558.
This rule is strictly observed in this state. In Dillingham v. Russell, 73 Tex. 51, 11 S.W. 139, 3 L.R.A. 634, 15 Am.St.Rep. 753, it is said: “The rule,” referring to the principle that the master is not ordinarily liable for an injury resulting from the willful and malicious acts of his agent not done in the course of his employment, “however, cannot be applied in a case in which the master by contract, express or implied, is under obligation to protect the injured person from the servant’s wrongful act as well as his own. Where a duty is thus imposed on the master, for whose acts, whether of omission or commission, resulting in injury to the person entitled to have the duty performed, the master must be held as fully responsible and liable to make at least actual compensation as though the act were his own personal act. In such cases, if the servant does what the master could not suffer to be done without violation of the particular duty resting upon him, or if the servant omits to do that requisite to the full discharge of the master’s incumbent duty, then the master must be held responsible for the servant’s wrongful or malicious act or omission, for otherwise it would result that a master might relieve himself from obligation to perform a duty fixed by contract, or otherwise, by the employment of servants to conduct the business to which the duty attaches. The master’s obligation cannot thus be avoided, and whether the servant’s act violative of the master’s duty be willful or malicious is a matter of no importance in determining the liability and obligation of the master to make actual compensation to the injured person. It has been steadily held to be the duty of carriers of passengers to protect them, in so far as this can be done by the exercise of a high degree of care, from the violence and insults of other passengers and strangers, and to protect them from the violence and insults of the carrier’s own servants, and the inquiry whether this duty arises from contract or from the nature of the employment becomes unimportant, except that the duty goes with the carrier’s contract, however made, whereby the relation of carrier and passenger is established.” [cc]
The case of Texas & Pacific Ry. Co. v. Jones (Tex.Civ.App.) 39 S.W. 124, is one where the plaintiff’s wife, who was in defendant’s depot for the purpose of taking passage on one of defendant’s trains, was insulted by the wife of the ticket agent, but suffered no physical injury in consequence, and the question presented was whether the husband could recover damages for her mental suffering. It was held that it was the duty of appellant’s station agent to protect her from insult and abuse from all persons while she was at its station waiting to become a passenger on its train, and she had the right to recover for a breach of such duty whether she received physical injuries or not. In the case of *523 Houston & Texas Central Ry. Co. v. Perkins (Tex.Civ.App.) 52 S.W. 124, where the plaintiff and his wife were passengers in a Pullman sleeper attached to one of defendant’s trains, and, at night, the defendant permitted drunken men to enter the coach where plaintiff and his wife had retired, allowing the drunkards to remain and use profane and indecent language, which caused the wife mental anguish and loss of rest, this court held, in an opinion by Justice Fly, that the husband was entitled to recover damages though his wife sustained or suffered no physical injuries. See, also, M., K. & T. Ry. Co. v. Ball (Tex.Civ.App.) 61 S.W. 327. The case of I. & G.N. Ry. v. Henderson (Tex.Civ.App.) 82 S.W. 1065, is one where a negro passenger, with the knowledge of the conductor, was vilified and made to dance for the amusement of the passengers by several drunken rowdies, who had entered the train; and, though the evidence failed to show that he suffered any physical injuries, a verdict against the railway company for $1,000 damages on account of his humiliation, mortification, and fright was affirmed on appeal. See, also, Quinn v. L. & N. Ry. Co. (Ky.) 32 S.W. 742.
We have quoted the foregoing elementary principles and cited cases falling under them for the purpose of demonstrating that the liability of a common carrier for insults by its servants causing humiliation, a sense of disgrace, mental anguish, or fear in a passenger is independent of physical injury or bodily harm; and that such liability does not depend upon the negligence of the master in employing the servant, or the scope of his authority, if the insult is given while employed about his master’s business.
It being established by the decisions of this state that mental suffering is an element of damages, where it results from a breach of the carrier’s contract or duty, though no physical injury may have been sustained, and, as the evidence in this case shows plaintiff’s wife suffered mental anguish from the consequence of such breach, which was also a tort, it was for the jury to determine the quantum of damage. In such a case the law does not undertake to, nor can it, exactly measure his damages, but it authorizes the jury to consider the injured feelings of the party, the indignity endured, the humiliation, wounded pride, mental suffering, and the like, and to allow such sum as it may determine is right. When this is done, unless the verdict is palpably wrong, after it has been approved by the trial court, it is not the province of an appellate tribunal to disturb it.
What could be more humiliating to a frail, delicate, sensitive woman, with a babe at her breast and her other little ones around her, than to be pounced upon, vilified, and traduced by a negro servant in a railway depot, where her relation as passenger to its owner entitles her to be treated with respect and kindness? Is it any wonder to those who can contemplate the effect of such an outrage that the poor woman for months afterwards, as she testified, could not close her eyes without that angry, threatening negro arising before her and murdering sleep? In G., C. & S.F. Ry. Co. v. Trott, 86 Tex. 412, 25 S.W. 419, 40 Am.St.Rep. 866, the Supreme Court says: “That a physical personal injury may be produced through emotion of the mind there can be no doubt. The fact that it is more difficult to produce such an injury through the operation of the mind *524 than by direct physical means affords no sufficient grounds for refusing compensation in an action at law, where the injury is intentionally or negligently inflicted. It may be more difficult to prove the connection between the alleged cause of injury, but if it be proved, and the injury be the proximate result of the cause, we cannot say that a recovery should not be had.” It was for the jury to say from the evidence whether plaintiff’s wife, in consequence of the outrage inflicted upon her by appellant’s servant, suffered from nervous prostration and sickness, and there being evidence to support its finding, we deemed it our duty to make our conclusions of fact conform thereto, and, in view of the evidence and the principles of law above enunciated, to conclude that the verdict is not excessive. This disposes of the first and second assignments of error.
[Editor’s note: The third assignment of error is omitted here.]
The fourth assignment complains that the court erred in not sustaining defendant’s objection to that part of the answer of Mrs. Luther *525 to the sixth interrogatory which is as follows: “The little girl May was very much frightened, and said ‘Mamma, let’s get out of here’”—because such part of the answer was immaterial, irrelevant, and hearsay. *** However, we have no doubt that this part of the answer was admissible in evidence as part of the res gestae, and for that reason distinguishable from hearsay. For the appearance and exclamation of the child was when the negro was standing over and abusing her mother, and were indicative of the woman’s action and language, and tended to show her violent and outrageous conduct toward plaintiff’s wife. [cc]
The testimony complained of in the fifth, sixth, and seventh assignments was admissible in evidence under the rule that, where the bodily and mental feelings of an individual are material to be proved, the usual expressions of such feelings, made at the time in question, are original evidence. If they are the natural language of the affection, whether of body or mind, they furnish satisfactory evidence, and often the only proof of its existence. And whether they were real or feigned is for the jury to determine. [cc] And a witness may testify that another person seemed to be sick, suffering, nervous, or in good or bad health. [cc]
While the rule, expressed in the court’s charge, that “railway companies are not insurers of the safety and comfort of their passengers, but are required to exercise that high degree of care that very cautious and prudent persons would have exercised under the same or similar circumstances, and a failure to do so is negligence,” may not be strictly applicable to a case of this character, its being given in the charge [to the jury] could not have possibly prejudiced the defendant, since in a case like this the common carrier is absolutely liable for injuries unlawfully and wrongfully inflicted by his servant on a passenger.
There is no error in the judgment, and it is affirmed.
Note 1. What is the tortious harm here?
Note 2. What do you note about how the court describes the dynamic between the two women?
Note 3. What is the purpose of making an employer vicariously liable for the kind of dynamic described here? What effect will a ruling like this one have in the workplace?
Note 4. The principal case mentions a prior case, International & G.N.R. Co. v. Henderson, in which “a negro passenger, with the knowledge of the conductor, was vilified and made to dance for the amusement of the passengers by several drunken rowdies, who had entered the train.” The paragraphs below, excerpted from International & G.N.R. Co, provide further details on the experience of Mr. Henderson, the African-American plaintiff targeted by drunken passengers.
International & G.N.R. Co. v. Henderson, Court of Civil Appeals of Texas (1904)
(82 S.W. 1065)
[***] [A]ppellee was a passenger on one of appellant’s passenger trains from San Antonio to Austin, and further alleged: That during the time that said passenger train was on its way to Austin from San Antonio, and while plaintiff was on the train as a passenger, seated in the car set apart for the use of colored passengers (plaintiff being a colored man), the said car was invaded by several intoxicated or partially intoxicated white men, to plaintiff unknown, who made use of said car set apart for the use of colored passengers as a smoking car; said unknown white men were rude, boisterous, vulgar, and profane, cursing and swearing in the presence of plaintiff and several colored women, among whom was the wife of the plaintiff. The plaintiff remonstrated with the white men who had invaded the car set apart to the colored passengers, and was then abused, cursed, and vilified in the most vulgar and indecent language, and was marched through the train at the point of pistols held in the hands of the white men, and compelled to get off said train at the first station through which the plaintiff passed. That he caught the last car on the train after being compelled to get off, and once more seated himself as a passenger on the passenger train of defendant, but was again seen by the crowd of white men, as hereinbefore alleged, and was again cursed and vilified by said crowd of men, and compelled to march through the train at the point of pistols, and made to dance for the amusement of fellow passengers, searched, and again compelled to get off the train at the first station through which the passenger train passed; and then the plaintiff appealed to the conductor of said train for protection, informing the conductor that he was a passenger, and entitled to protection as a passenger. The conductor informed the plaintiff that he could do nothing for him, and for him (the plaintiff) to get on the blind baggage car. That he then again got upon the train, but the same crowd of white men compelled him, at the point of pistols, to again walk to and fro through the train, and when the train reached the station of Buda the plaintiff was compelled to get off and leave said train at the point of pistols and in fear of his life, and was not allowed by said crowd of white men to again get upon the train. That the plaintiff appealed to the conductor and the other trainmen in control of the train, but he was told that they could do nothing for him. That, after being compelled to get off the train at Buda, he walked to Austin, a distance of 12 miles, arriving next morning, as it was night when plaintiff was put off and required to leave the train at Buda. The petition alleges that the facts as stated were known to the conductor and the servants in charge of the train. And the petition concludes with the statement that he has been greatly damaged, in being placed in fear of his life and great bodily harm, and that he suffered great anguish in body and mind on account of the mistreatment as herein alleged, and sues for the sum of $5,000. There is abundant evidence in the record sustaining these averments.
[***] The evidence in the record, and the case as made by the pleadings, is not one wholly of mental anguish, but it shows an unjustifiable assault made by drunken passengers upon the person of the appellee at a time and under circumstances when he should have been afforded protection by the conductor and the servants in charge of the train. They knew and were informed of the outrageous and unjustifiable assault that was being committed, and there is no palliation or excuse for the conduct of the railway company in not resorting to some means to afford protection to the plaintiff from the premeditated, unjustifiable, and outrageous assault that was being committed upon him, the progress of which, as the evidence shows, continued for some time, within the knowledge of the conductor. On the points of law raised in the assignments noticed, the authorities in this state are clearly against the contention of the appellant. Texas & Pacific Railway Co. v. Armstrong, 93 Tex. 34, 51 S.W. 835; Missouri Pacific Railway Co. v. Kaiser, 82 Tex. 144, 18 S.W. 305; M., K. & T. Ry. Co. v. Tarwater (Tex.Civ.App.) 75 S.W. 937; International & Great Northern Railroad Co. v. Anchondi (Tex.Civ.App.) 68 S.W. 744.
The fifth assignment of error complains that the verdict of the jury is excessive, outrageous, and unconscionable, and that the court erred in overruling defendant’s motion for new trial, because the damages awarded to the plaintiff are out of all proportion to the inconvenience and humiliation alleged to have been suffered by him. In view of the evidence in the record, it is unnecessary to discuss the question raised by this assignment. The plaintiff was clearly entitled to the amount recovered [$1,000], if not more.
Note 5. Having read the account of Mr. Henderson’s experience, consider how it compares with the experience of Mrs. Luther in the waiting room, recalling that both incidents were alleged to have resulted in emotional distress. What do you observe about how the court in Gulf v. Luther cites to this case, International & G.N.R. Co. v. Henderson? What does it suggest about a system built on stare decisis?
Professor Kim Lane Scheppele describes how a legal system ceases to feel legitimate when it discredits or misrepresents those whom it purposes to represent and regulate: “Those whose stories are believed have the power to create fact; those whose stories are not believed live in a legally sanctioned ‘reality’ that does not match their perceptions. …How are people to think about the law when their stories, the ones they have lived and believed, are rejected by courts, only to be replaced by other versions with different legal results? …[T]here are few things more disempowering in law than having one’s own self-believed story rejected, when rules of law (however fair in the abstract) are applied to facts that are not one’s own, when legal judgments proceed from a description of one’s own world that one does not recognize…” Foreword: Telling Stories, 87 Mich. L. Rev. 2073, 2079–80 (1989) What should courts do to guard against citation practices like those illustrated in the Luther and Henderson cases?
Check Your Understanding
Read the following dicta from Gulf v. Luther and select the answer that most accurately captures the meaning of the passage:
While the rule, expressed in the court’s charge, that “railway companies are not insurers of the safety and comfort of their passengers, but are required to exercise that high degree of care that very cautious and prudent persons would have exercised under the same or similar circumstances, and a failure to do so is negligence,” may not be strictly applicable to a case of this character, its being given in the charge [to the jury] could not have possibly prejudiced the defendant, since in a case like this the common carrier is absolutely liable for injuries unlawfully and wrongfully inflicted by his servant on a passenger.
A. Railway companies are not required to exercise anything more than reasonable care unless the safety and comfort of their passengers is at issue.
B. The notion that railway companies are not insurers of the safety and comfort of their passengers is not strictly applicable to this case, so it was disregarded here.
C. Railway companies are not insurers of the safety and comfort of their passengers because they cannot control what their employees will do; hence their immunity from absolute liability for emotional distress.
D. Railway companies are not insurers of the safety and comfort of their passengers and generally they are only liable for breaching their duty of care if they fail to behave like the very cautious and prudent person would, but in this special case, the jury charge was appropriate and the scope of liability even broader than that charge.
Answer: D is correct. Railway companies are not insurers of the safety and comfort of their passengers and generally they are only liable for breaching their duty of care if they fail to behave like the very cautious and prudent person would, but in this special case, the jury charge was appropriate and the scope of liability even broader than that charge.
A is incorrect because the language states the opposite, “that high degree of care that very cautious and prudent persons would have exercised” … and “very cautious and prudent” people are more careful than the regular “reasonable person.”
B is incorrect because it was not disregarded here even though it was deemed not strictly applicable.
C is incorrect because the “absolutely liability” for injuries “in a case like this” actually does seem to apply here; there is no immunity from it and the court does not limit its reasoning to emotional distress claims; instead, it founds it on the defendant’s employee’s conduct (“injuries lawfully and wrongfully inflicted by his servant”).
Ruiz v. Bertolotti, Supreme Court, Nassau County (1962)
(NY 37 Misc.2d 1067)
In sum the complaint states that the plaintiffs, who are Puerto Ricans, contracted to purchase a house in a residential section of Massapequa from one Farber, a builder; that the defendant learned of this and he, acting in concert with others, personally called on Farber and expressed anger at ‘colored persons’ moving into the neighborhood, and threatened bodily harm to him, to plaintiffs and to plaintiffs’ children, if the sale were consummated; that these threats were made with malice and for the purpose of communication to plaintiffs, in order to frighten them into agreeing to rescind the contract of sale; that these threats were communicated to plaintiffs by Farber and that plaintiffs were put in fear of their personal safety and that of their children as a result of which they entered into an agreement rescinding the contract of sale. It is further alleged that, as a result of these threats, both plaintiffs suffered distress, humiliation and emotional shock and were rendered sick and nervous, and that in addition plaintiff Manuel Ruiz suffered pecuniary damage in that he had to search for another dwelling and absent himself from his business.
Much of the discussion in the moving brief, in the court’s view, is beside the point. This does not purport to be an action under the new anti-discrimination laws, nor in defamation, nor for assault, so there is no point in showing its deficiencies in this regard. [***]
This is an action for a wilful and malicious tort, the very purpose of which was to so frighten and distress the plaintiffs that they would surrender their legal right to buy a house where they pleased. These were not mere idle words of disapproval but a specific threat of bodily harm. The ultimate purpose of keeping ‘colored people’ out of the neighborhood could not be accomplished unless the immediate objective of putting them in fear for their safety first succeeded.
In principle this case is not too different from Halio v. Lurie, 15 A.D.2d 62, 222 N.Y.S.2d 759, where a malicious, sarcastic letter, taunting the *1069 plaintiff with her unsuccessful efforts to marry the defendant was held to be actionable without a showing of special damage. Battalla v. State, 10 N.Y.2d 237, 219 N.Y.S.2d 34, 176 N.E.2d 729, is analogous also. There the Court of Appeals overruled the long established rule of Mitchell v. Rochester Ry. Co., 151 N.Y. 107, 45 N.E. 354, 34 L.R.A. 781, that there could be no recovery for negligently causing fright, distress and physical damage, unless there had been an impact and allowed a complaint to stand although no physical contact was involved.
Deliberate and malevolent conduct, albeit confined to words, is at least as serious a matter, requiring the protection of the law to even a greater degree. (Scheman v. Schlein, 35 Misc.2d 581, 231 N.Y .S.2d 548.)
The fact that the threat was uttered to an intermediary for communication to plaintiffs does not, in any way, detract from its viciousness and illegality. An ‘organizer’ who goes into a barber shop and tells an employee to tell the employer to raise the price of haircuts or his shop will be dynamited, would get short shrift with the defense that he did not speak to the employer personally.
For these reasons I believe that defendant must come forward and stand on his position that the episode did not take place and not that he is not liable even if it did happen, which is his position on this motion.
Motion denied.
Note 1. The court attempts to sort the defendant’s conduct into one of tort law’s existing categories: “This does not purport to be an action under the new anti-discrimination laws, nor in defamation, nor for assault, so there is no point in showing its deficiencies in this regard.” What do you make of this effort, and how does it square with the outcome in this case?
Note 2. Having now had a brief introduction to trespass, battery, and assault—three of the core intentional torts—what do you observe about the way they were applied in the cases you read, whom they served or disserved, and how they differed from negligence law?
Check Your Understanding
Multiple choice: Which of the following is the least applicable normative justification for the doctrine of vicarious liability?
A. Efficiency, because employers are the cheapest cost avoiders and also can pass on additional costs to their customers.
B. Compensation, because employers are more likely than employees to have pockets deep enough to compensate the plaintiff for the harm that was caused.
C. Fairness, because the doctrine encourages employers to treat all of their employees with dignity and respect.
D. Deterrence, because the doctrine encourages employers to exercise care in hiring and training their employees to avoid harming customers.
E. Social Justice, because employers benefit from the labor of their employees, who often have little power to change harmful business practices or toxic work cultures, so employers should also bear the risk of litigation for the harm caused by those business practices.
Answer: C, Fairness, because the doctrine encourages employers to treat all of their employees with dignity and respect. Although it is desirable for employers optimally treat employees with dignity and respect, the doctrine of vicarious liability has little to do with that ethos. In fact, employers are generally immune from claims by employees about harm they suffer in the workplace. The system of workers’ compensation is the means by which injuries received at work are covered. Torts such as employment discrimination fall outside that system and are treated somewhat differently, with hurdles of their own. At a certain point, employers do have a responsibility for their employees’ conduct towards each other, but the fairness justification here is framed in terms of employers relationship to their employees, which is why the question is phrased to ask for the “least applicable” justification for vicarious liability.
All the other answers are among the justifications for the doctrine.