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American Law Institute Makes Bacon Battery


— June 25, 2015

bacon grenade6/25/2015

The American Law Institute makes bacon battery. Say what? This highly influential group, members of which include lawyers, judges and SCOTUS justices, most law school deans, the chief judges of the U.S. Courts of Appeal and some law professors recently voted to expand the tort of battery to include intentional contact with another person that “offends a reasonable sense of personal dignity” or that is extremely offensive to that person’s “unusually sensitive sense of personal dignity, and the actor knows that the contact will be highly offensive to the other.”

Those of you who’ve read my posts know that I’m not exactly the diplomatic type when it comes to pointing out stupidity. This post, then, should come as no surprise. Before anyone thinks, “Oh, it’s just some group voting for a change they’d like to see,” the ALI is (usually) one of the most respected and respectable group in the law.

The ALI publishes “restatement” in an attempt to codify the common law and guide it in the ALI’s chosen direction. The Restatement of Tort’s from 1964, for example, is now widely recognized as “the” guide to tort law. Product liability law now includes sellers’ liability for product defects regardless of fault; in 1964, only sixteen states had that as law. To further illustrate the power of the ALI, in Arizona the ALI’s restatements are automatically law in all future decisions if there isn’t a contrary state law in place. The ALI is cited, on average, at least once a month in SCOTUS decisions.

So you can see, the ALI is not a crackpot institution. Until now.

Last month’s ALI vote on “unusually sensitive” people was a close one. It’s really too bad the “Nay” voters lost, in this instance. “But why?” I can hear you asking. “Isn’t it important to respect all people?” Yes, it is, to a point. Lemme tell you why I think this is true.

Battery was defined as an:

  • Intentional
  • Offensive or harmful
  • Contact
  • With another person

If I walk up to you and smack you upside the head because I don’t agree with you, I’ve just committed the tort of battery. For those keeping score, I’ve also committed the crime of assault and battery. If I hit the hood of your car with my umbrella while you’re at a stoplight because you’re in the crosswalk, I’ve just committed the tort of battery. Huh? Yep, case law holds that your car is essentially a part of your while you’re driving it. If I take away your plate as you stand in a buffet line because I don’t like your haircut, I have just committed the tort of battery. This actually happened to a NASA engineer, only it was due to his dining while black, not his haircut.

However, if I bump into you in a crowded hallway, I have not committed the tort of battery. As I’m not a law professor or (that much of) a sadist, I won’t ask that you tell me why. This definition of battery has served to eliminate suits over accidental contact that happens as part of our daily lives and to cut down on frivolous suits.

Frivolous suits such as the thankfully dismissed North Carolina case, McCracken v. Sloan from 1979. In McCracken, the plaintiff, an employee of the defendant, sued his boss for battery because the boss was smoking a cigar in his own office and McCracken had told the boss that he found cigar smoking “obnoxious.” The trial court said that McCracken’s “mental distress” wasn’t enough to qualify as battery. However, under the “unusually sensitive” version of battery, McCracken would win.

You may still be thinking, “So what? Who smokes at work these days anyway?” Well, that’s just one example. Let’s say, arguendo, that you are a flaming racist d-bag. You go to the hospital for a colonoscopy (presumably to see if your head really is up there) and you make the following request:

“I do not wish to be touched by any Jewish hospital personnel.”

Under the old system, the ALI said, “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” because it violates “public policy.”

However, the new restatement of battery eliminates the words, “or religion.” In other words, if a Jewish doctor runs the camera up your bum, you get to sue the living daylights out of the hospital because it has committed the tort of battery. In communities where such racism or “religionism” abounds, Muslims traditionally don’t care for Jews, suits like this could become commonplace. Hospitals would have to defend or settle these suits (more likely settle) and voilà! we have legally institutionalized religious bigotry. Is the problem becoming clearer?

The usual standard for tort law is the “reasonable person.” This means that all contacts, etc. are judged by the way this “mythical” individual would respond. Such a standard ensures equal justice for all. The new addition of “unusually sensitive” throws a huge monkey wrench into that fair and equitable system.

I’m sightseeing in Dearborn, Michigan, a city with a large Muslim population. I end up getting lost (for those who know me in “real life” this is a common occurrence). I politely tap a Muslim woman on the shoulder to ask for directions. There is a distinct possibility that I have just committed the tort of battery. Why? Simply because a jury could find that a “reasonable person” should’ve known that men aren’t supposed to touch Muslim women to whom they are unrelated. However, if that same woman was sightseeing in my city and tapped me on the shoulder, she is not liable under the new battery because there isn’t (presumably) a religious belief that prohibits her touching me.

Two different standards now exist for the same conduct. Goodbye, equal justice!

Where does bacon come into play? Remember McCracken and the “obnoxious” cigar smoke? If I stood on a street corner in Dearborn eating a bacon double cheeseburger, a passing Muslim could construe the smell of the bacon as an offensive contact. And before anyone starts in about me picking on Muslims, I’m not.

Once again, arguendo, let’s assume my choice to be vegan is based in a religious belief that eating animals is wrong. Further, let’s say you are eating a bacon double cheeseburger and the smell of said flesh food is wafting into my “unusually sensitive” personal space. You’ve just committed the tort of battery and opened yourself up to a whopping lawsuit. For the record, I’d likely win in my city.

Also for the record, my veganism is not based on religious beliefs and I’m not a Buddhist. Plus, I’m not the kind of vegan who will chastise you for devouring a hamburger. I can be a d-bag, but not that kind of d-bag.

Suffice to say while I do respect everyone’s right to be themselves I also think that we are “PC-ing” ourselves into a corner. At what point do we stop and just say, “Toughen up, buttercup! You are not the center of the universe!”?

Instead, the ALI has taken one more step in the direction of making society so politically correct that eventually we won’t even be able to blink for fear of being sued.

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