Help me analyze this intentional tort hypo please

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Anomaly
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Help me analyze this intentional tort hypo please

Postby Anomaly » Fri Feb 03, 2012 10:32 pm

Last week A moved to the US from Pakistan. A is at Giant Eagle and sees B, a female stranger. He walks up behind her and starts massaging her shoulders. B is offended and sues A for battery. Now A says he didn't think a shoulder-massage was offensive because his culture is very "physical". Who doesn't like shoulder-massages? They always gave shoulder massages to show affection back home in Pakistan.

What's A's best case ?

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sundance95
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Re: Help me analyze this intentional tort hypo please

Postby sundance95 » Fri Feb 03, 2012 10:35 pm

The offensive touch element is measured by an objective reasonable person standard. The idiosyncratic subculture of B is irrelevant, touching a stranger in this manner would almost certainly present a jury question.

Eta: A must actually be offended as well, but that does not seem to be in dispute here.

Eta2: bah, mixed B and A.

Anomaly
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Re: Help me analyze this intentional tort hypo please

Postby Anomaly » Fri Feb 03, 2012 10:45 pm

sundance95 wrote:The offensive touch element is measured by an objective reasonable person standard. The idiosyncratic subculture of B is irrelevant, touching a stranger in this manner would almost certainly present a jury question.

Eta: A must actually be offended as well, but that does not seem to be in dispute here.


A jury question? Ok. What if the instructions say: "to find A liable for battery, A must have 1) intended to touch B, and 2) intended to harm or offend B."

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ph14
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Re: Help me analyze this intentional tort hypo please

Postby ph14 » Fri Feb 03, 2012 10:46 pm

Anomaly wrote:
sundance95 wrote:The offensive touch element is measured by an objective reasonable person standard. The idiosyncratic subculture of B is irrelevant, touching a stranger in this manner would almost certainly present a jury question.

Eta: A must actually be offended as well, but that does not seem to be in dispute here.


A jury question? Ok. What if the instructions say: "to find A liable for battery, A must have 1) intended to touch B, and 2) intended to harm or offend B."


Seems like 1) is met but 2) is not. I agree with Sundance's above analysis though.

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Bildungsroman
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Re: Help me analyze this intentional tort hypo please

Postby Bildungsroman » Fri Feb 03, 2012 10:49 pm

Anomaly wrote:
sundance95 wrote:The offensive touch element is measured by an objective reasonable person standard. The idiosyncratic subculture of B is irrelevant, touching a stranger in this manner would almost certainly present a jury question.

Eta: A must actually be offended as well, but that does not seem to be in dispute here.


A jury question? Ok. What if the instructions say: "to find A liable for battery, A must have 1) intended to touch B, and 2) intended to harm or offend B."

That's not a correct jury instruction. He has to intend the touch, but there's no requirement that he intend the touching be harmful or offensive.

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Detrox
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Re: Help me analyze this intentional tort hypo please

Postby Detrox » Fri Feb 03, 2012 10:51 pm

I disagree that the culture issue is irrelevant. I think the hypo is a standard cultural defense question.

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sundance95
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Re: Help me analyze this intentional tort hypo please

Postby sundance95 » Fri Feb 03, 2012 10:57 pm

Detrox wrote:I disagree that the culture issue is irrelevant. I think the hypo is a standard cultural defense question.

I said its at least a jury q. You can think what you like, but Ds not winning a directed verdict motion based on that issue.

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Re: Help me analyze this intentional tort hypo please

Postby Anomaly » Fri Feb 03, 2012 11:02 pm

I don't know if you're joking, but of course the culture is relevant. Why else would it be in the hypo? Would you seriously write "It's irrelevant, no battery"? Then what? What BS claims will you move onto? "A v. B for false imprisonment": [when A touched B he physically restrained her and....]. Seriously, the cultural difference is the only interesting thing in the fact pattern. Prof is INVITING you to discuss it, not dismiss it because the jury instructions aren't accurate or something.

And about the jury instructions, I'm sorry. I don't know how to write jury instructions.

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Re: Help me analyze this intentional tort hypo please

Postby Anomaly » Fri Feb 03, 2012 11:28 pm

sundance95 wrote:The offensive touch element is measured by an objective reasonable person standard. The idiosyncratic subculture of B is irrelevant, touching a stranger in this manner would almost certainly present a jury question.

Eta: A must actually be offended as well, but that does not seem to be in dispute here.

Eta2: bah, mixed B and A.


And I'm confused by your analysis. Just because the objective reasonable person would be creeped out by the touch, that doesn't mean A intended to creep her out. The"offensive touching" element is easy. That's not an issue.

The contested element is intent, and let's say B has to show that 1) A intended to touch, and 2) A intended to offend. Pretty sure that's a subjective test. We're asking the jury to look into A's mind and figure out what he was actually thinking when he massaged B's shoulders at the grocery store. We're not asking for the jury's opinion about what they do at the grocery store, or what the objective reasonable person does at the grocery store. A is NOT the objective reasonable person, he's a weirdo.

Now - given the objective evidence, did A purposely offend B? Did he know to substantial certainty that massaging B's shoulders would offend her?

Discuss.

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sundance95
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Re: Help me analyze this intentional tort hypo please

Postby sundance95 » Fri Feb 03, 2012 11:32 pm

Lol. You're confused because you don't know the bll. As several have already mentioned, intent to offend is not an element of battery. Go do yourself a favor and buy the torts e&e.

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Bildungsroman
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Re: Help me analyze this intentional tort hypo please

Postby Bildungsroman » Fri Feb 03, 2012 11:33 pm

Anomaly wrote: let's say B has to show that 1) A intended to touch, and 2) A intended to offend.

Unless I completely misunderstood the first few weeks of torts, B doesn't have to show #2 at all.

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Re: Help me analyze this intentional tort hypo please

Postby Anomaly » Fri Feb 03, 2012 11:39 pm

"A jury can, of course, find a mentally deficient person liable for an intentional tort, but in order to do so, the jury must find that the actor intended offensive or harmful consequences. White v. Muniz, 999 P.2d 814 (Colo. 2000).

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sundance95
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Re: Help me analyze this intentional tort hypo please

Postby sundance95 » Fri Feb 03, 2012 11:42 pm

Anomaly wrote:"A jury can, of course, find a mentally deficient person liable for an intentional tort, but in order to do so, the jury must find that the actor intended offensive or harmful consequences. White v. Muniz, 999 P.2d 814 (Colo. 2000).

Yay, you found a limited exception to the general rule that has no relevance to your hypothetical!

What are you going to do with that? Argue that Pakistanis are per se mentally deficient?

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I.P. Daly
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Re: Help me analyze this intentional tort hypo please

Postby I.P. Daly » Sat Feb 04, 2012 12:01 am

Bildungsroman wrote:
Anomaly wrote: let's say B has to show that 1) A intended to touch, and 2) A intended to offend.

Unless I completely misunderstood the first few weeks of torts, B doesn't have to show #2 at all.


Who does #2 work for?

Image

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Flips88
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Re: Help me analyze this intentional tort hypo please

Postby Flips88 » Sat Feb 04, 2012 12:07 am

He made an (1) intentional, (2) unconsented, (3)unprivileged, (4) physical contact that was (5) harmful or offensive.

Consent is measured subjectively by the plaintiff. She clearly didn't like it. Privileged is measured with respect to societal norms and in America, the societal norms are different than Pakistan. So it'd like be a jury question as to whether the touching was unprivileged or not. He's probably shit out of luck here.

ETA: Torts is not like crim law where you needs the guilty mind. You intended to make the contact so you intended something unlawful (think the kid's kick in Vosburg v. Putney).

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ph14
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Re: Help me analyze this intentional tort hypo please

Postby ph14 » Sat Feb 04, 2012 12:17 am

Flips88 wrote:He made an (1) intentional, (2) unconsented, (3)unprivileged, (4) physical contact that was (5) harmful or offensive.

Consent is measured subjectively by the plaintiff. She clearly didn't like it. Privileged is measured with respect to societal norms and in America, the societal norms are different than Pakistan. So it'd like be a jury question as to whether the touching was unprivileged or not. He's probably shit out of luck here.

ETA: Torts is not like crim law where you needs the guilty mind. You intended to make the contact so you intended something unlawful (think the kid's kick in Vosburg v. Putney).


I would argue that it's a jury question with regards as to whether getting your shoulders rubbed by a stranger (a foreigner, who people might understand to have different societal customs) would be objectively offensive (doesn't appear there is any risk of harm) to a reasonable person.

The best argument for the foreigner would be that a little contact is expected when you are out and about conducting your business (although this is a weak and most likely losing argument).

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Flips88
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Re: Help me analyze this intentional tort hypo please

Postby Flips88 » Sat Feb 04, 2012 12:35 am

ph14 wrote:
Flips88 wrote:He made an (1) intentional, (2) unconsented, (3)unprivileged, (4) physical contact that was (5) harmful or offensive.

Consent is measured subjectively by the plaintiff. She clearly didn't like it. Privileged is measured with respect to societal norms and in America, the societal norms are different than Pakistan. So it'd like be a jury question as to whether the touching was unprivileged or not. He's probably shit out of luck here.

ETA: Torts is not like crim law where you needs the guilty mind. You intended to make the contact so you intended something unlawful (think the kid's kick in Vosburg v. Putney).


I would argue that it's a jury question with regards as to whether getting your shoulders rubbed by a stranger (a foreigner, who people might understand to have different societal customs) would be objectively offensive (doesn't appear there is any risk of harm) to a reasonable person.

The best argument for the foreigner would be that a little contact is expected when you are out and about conducting your business (although this is a weak and most likely losing argument).

I think a jury would find that a reasonable person in the plaintiff's position, a woman being touched from behind by a stranger in public, would find such contact offensive. It'd be pretty creepy I imagine

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Bildungsroman
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Re: Help me analyze this intentional tort hypo please

Postby Bildungsroman » Sat Feb 04, 2012 12:39 am

Flips88 wrote:
ph14 wrote:
Flips88 wrote:He made an (1) intentional, (2) unconsented, (3)unprivileged, (4) physical contact that was (5) harmful or offensive.

Consent is measured subjectively by the plaintiff. She clearly didn't like it. Privileged is measured with respect to societal norms and in America, the societal norms are different than Pakistan. So it'd like be a jury question as to whether the touching was unprivileged or not. He's probably shit out of luck here.

ETA: Torts is not like crim law where you needs the guilty mind. You intended to make the contact so you intended something unlawful (think the kid's kick in Vosburg v. Putney).


I would argue that it's a jury question with regards as to whether getting your shoulders rubbed by a stranger (a foreigner, who people might understand to have different societal customs) would be objectively offensive (doesn't appear there is any risk of harm) to a reasonable person.

The best argument for the foreigner would be that a little contact is expected when you are out and about conducting your business (although this is a weak and most likely losing argument).

I think a jury would find that a reasonable person in the plaintiff's position, a woman being touched from behind by a stranger in public, would find such contact offensive. It'd be pretty creepy I imagine

Yeah, I don't think the dood has a good defense here, although the best would probably be that it's a social interaction thing (trying to remember the term of art my prof used for it, but basically along the lines of a pat on the back or a nudge with an elbow).

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sundance95
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Re: Help me analyze this intentional tort hypo please

Postby sundance95 » Sat Feb 04, 2012 12:40 am

Implied consent?

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JoeFish
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Re: Help me analyze this intentional tort hypo please

Postby JoeFish » Sat Feb 04, 2012 1:14 am

It's extremely battery in Idaho, I think (White v. Idaho). I think it's right, though, too, that he didn't know her and they were in public. Yeah, the societal difference doesn't really come into play at all, I think; the questions are 1) did he intend to make the contact (it doesn't matter if he intended to injure or offend) and 2) was the contact offensive? Yes and yes.

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3|ink
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Re: Help me analyze this intentional tort hypo please

Postby 3|ink » Sat Feb 04, 2012 2:02 am

Anomaly wrote:"A jury can, of course, find a mentally deficient person liable for an intentional tort, but in order to do so, the jury must find that the actor intended offensive or harmful consequences. White v. Muniz, 999 P.2d 814 (Colo. 2000).

Obvious Pakistani trolling.

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Detrox
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Re: Help me analyze this intentional tort hypo please

Postby Detrox » Sat Feb 04, 2012 3:13 am

Again I will restate that I think the cultural defense is being completely underrated in this hypo where the elements seem cut and dry. Depending on your class, the cultural defense may prove quite powerful in Tort law, where other classes may not even cover it, http://adwww2.americanbar.org/sections/ ... enteln.pdf .

Here I think it is the former where the cultural defense and its pros/cons are the primary discussion topics being sought.

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3|ink
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Re: Help me analyze this intentional tort hypo please

Postby 3|ink » Sat Feb 04, 2012 4:08 am

Detrox wrote:Again I will restate that I think the cultural defense is being completely underrated in this hypo where the elements seem cut and dry. Depending on your class, the cultural defense may prove quite powerful in Tort law, where other classes may not even cover it, http://adwww2.americanbar.org/sections/ ... enteln.pdf .

Here I think it is the former where the cultural defense and its pros/cons are the primary discussion topics being sought.

I'm not going to read this link until you clarify what you're arguing. Are you saying:

1. we are underrating the cultural defense because it is widely recognized in US common law?
2. it should be recognized in US common law?

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Detrox
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Re: Help me analyze this intentional tort hypo please

Postby Detrox » Sat Feb 04, 2012 4:37 am

3|ink wrote:
Detrox wrote:Again I will restate that I think the cultural defense is being completely underrated in this hypo where the elements seem cut and dry. Depending on your class, the cultural defense may prove quite powerful in Tort law, where other classes may not even cover it, http://adwww2.americanbar.org/sections/ ... enteln.pdf .

Here I think it is the former where the cultural defense and its pros/cons are the primary discussion topics being sought.

I'm not going to read this link until you clarify what you're arguing. Are you saying:

1. we are underrating the cultural defense because it is widely recognized in US common law?
2. it should be recognized in US common law?


Definitely not #2.

I'm saying that for purposes of a law school exam and this specific question, the answers above are underrating the cultural defense as the proper answer in terms of the best defense available given relevent precedent and the trend of recent cases.

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Re: Help me analyze this intentional tort hypo please

Postby Anomaly » Sat Feb 04, 2012 11:23 am

Cool article. This hypo is based off one of the examples in there actually (Muslim guy touches daughter at a martial arts tournament; the city takes his kids from him but jury acquits him of sexual battery, partly b/c of cultural evidence).

The cultural difference is on the prof's checklist. Don't fight it, talk about it.




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