As law professor Ronald D. Rotunda is reporting in The Wall Street Journal, the American Law Institute (ALI) is up to no good. The ALI is an influential private organization whose objective is “to promote the clarification and simplification of the law and its better adaptation to social needs.” The ALI wields this influence by publishing “Restatements”—reports that lawyers, legislators, and judges take very seriously. Like all influential organizations nowadays, however, the ALI is wading into fights over political correctness, and it is endorsing a change in tort law that could put you on the hook for millions of dollars.
At common law, battery is generally defined as contact with another person that “offends a reasonable sense of personal dignity.” If I punch you in the face, that’s battery. Not only am I criminally liable, but I am civilly liable, and owe you money for, among other things, medical bills and other out-of-pocket expenses. But if I hit you on the back to kill a wasp or because you are choking on some food, I’m probably not liable for battery. Why? Because most reasonable people would appreciate me helping protect them from a painful sting or asphyxiation.
Certain other unwanted contacts are also not considered batteries. If you go to a business meeting and someone shakes your hand and you don’t want them to, they aren’t liable for battery. But what if you’re a germophobe? That handshake could be terrible!
With the ALI’s new report, that handshake could be considered battery. In the refurbished definition of battery, recently approved by the ALI, battery would now include contact that offends a person’s “unusually sensitive sense of personal dignity” when “the actor knows that the contact will be highly offensive to the other.”
Goodbye “reasonable person,” hello “unusually sensitive sense.” This new standard is not just grammatically perplexing; it is also legally provocative and unnecessarily prejudicial. Here’s why.
Professor Rotunda offers other hypothetical situations which probably explain why the ALI is supporting this change. Suppose a hospital patient tells her physician she does not want to be touched by any Jewish doctors or nurses. In this situation, would the hospital be legally required to abide by the patient’s request? The answer is no—at least it was under the old definition. According to earlier drafts, “if the patient had demanded that she not be touched by a nurse or doctor of a particular race or religion, the hospital and medical staff have no obligation to respect that preference.” However, before approving the final version, the ALI consciously deleted the phrase “or religion.” Therefore, if the hospital, in the hypothetical above, refused to observe the patient’s request, they could potentially face liability. To give another example: What if an Orthodox Jewish or Muslim woman is offended by a man tapping her on the shoulder? If the ALI gets its way and states change their laws, that woman could now sue. The Restatement itself apparently uses this example, suggesting that a jury could find that a reasonable person should know better than to ever touch a woman outside their family.
Take a minute to let this sink in.
The consequences don’t stop there. The ALI’s new report would likely foster litigation in our thin-skinned and whiny culture. For example, in McCracken v. Sloan (1979), a North Carolina state court dismissed an assault and battery claim in which an employee sued his supervisor for smoking a cigar in the office—an act the employee found “obnoxious.” But if North Carolina decided to follow the new Restatement, this employer could well face liability.
Obviously, private organizations like the ALI are well within their rights to analyze the law and advocate for change, and the ALI often does good work. Further, states can change the traditional common law through the legislative process. But the common law should not be used to effect major social change, to open up huge new areas of tort liability, or to enforce changeable norms of political correctness.
Kyser Blakely is currently a member of the Young Leaders Program at The Heritage Foundation. For more information on interning at Heritage, please click here.
