Curb Your Liability

" If he hadn't ordered those eggs that way, you wouldn't be guilty of involuntary manslaughter." -- Jeff Greene

Emmy nominations were announced last week and Curb Your Enthusiasm was nominated for a few, including best comedy series.  Larry David was also nominated for best lead actor in a comedy for playing an extreme, misanthropic version of himself.  I think Larry David is a comic genius and I LOVE Curb Your Enthusiasm!  I can't believe it took me so long to watch, but I finally caught it this winter thanks to an HBO promotion.  After watching the seventh season featuring the Seinfeld reunion, I went back and Netflixed the first six.  So amazingly funny!

The Black Swan
 
In addition to Curb's usual debates regarding the necessity of various social conventions (like tipping policies, cell phone use, and introducing two strangers), the 7th episode of the 7th Season "The Black Swan" gives us the opportunity to examine criminal and tort liability in the context of the "eggshell skull" doctrine.

Larry and his entourage are out for a morning of golf and thoroughly annoyed to be stuck waiting behind a guy named Norm, who is known as the slowest golfer in the club.  Their attempt to beat the slow foursome out onto the course was foiled by Larry's cousin Andy, who insisted on ordering eggs with crispy onions at breakfast. 

Finally Larry can't take it anymore and starts yelling at Norm, "You can't hold up the whole course like this!  It's very inconsiderate!"  And, when Norm asks about Larry's wife (who has recently left him), he retorts, "F--- you, Norm!"  In the locker room after the game, one of Norm's golfing companions asks Larry why he had to yell and scream at Norm, especially given that he has high blood pressure.  "You know what happens when you yell at someone who has high blood pressure?  They have a heart attack and they die, and that's exactly what happened.  Norm is dead!"

Larry's friend Marty Funkhouser shakes his head and says, "Look it may have been an accident, but you're a murderer."  His manager Jeff reassures him by saying that it's just involuntary manslaughter because he didn't intend to kill Norm.  Larry exclaims, "You're blaming me?  It's not my fault he had a heart attack!"  Well, who is right?

Murder

For Larry to be guilty of murder, he must have killed Norm with one of the following states of mind:  (1) intent to kill, (2) intent to inflict great bodily injury, or (3) reckless indifference to an unjustifiably high risk to human life (also known as "abandoned and malignant heart.")  Larry's conduct must also be both the "cause-in-fact" and the proximate cause of Norm's death.  That is, the prosecution would have to show that Norm would not have died "but for" Larry's yelling and that Norm's death was a natural and probable consequence of Larry's behavior, even if Larry did not anticipate the result.  The general maxim is that criminal defendants must "take their victims as they find them," meaning that the victim's preexisting weakness or fragility will not break the chain of causation, even if the result was utterly unforeseeable.  Thus, the fact that Larry did not know that Norm had high blood pressure does not help him here.  And, it seems that there is a good argument that causation exists here.  However, I think it is clear that Larry had neither the intent to kill Norm or inflict great bodily injury upon him.  Although many people in Larry's inner circle might describe him as having an "abandoned and malignant heart," that doctrine typically refers to things like driving a car onto a crowded sidewalk and would probably not extend to yelling at a slowpoke on a golf course.

Involuntary Manslaughter

If Larry is not guilty of murder, is Jeff right that he is guilty of involuntary manslaughter instead?  Involuntary manslaughter is an unintentional killing resulting without malice aforethought caused by criminal negligence.  Criminal negligence means that Larry's conduct must have created a high degree of risk of death or serious injury, well beyond the tort standard of ordinary negligence.  Again, it must be particularly egregious behavior and I doubt reaming out Norm would qualify.  
 
Tort Liability

Even though Larry will likely avoid criminal charges, it is worth examining whether Norm's next of kin would be able to sue Larry with a wrongful death claim.  Similar to the "take your victim as you find him" rule in criminal law, the "eggshell skull" doctrine in torts holds the defendant liable for all consequences resulting from tortious or negligent activities that lead to an injury, even if the victim suffers an unusually high level of damage.  An example is a case out of Wisconsin where a boy lightly kicked the shin of a schoolmate, who unbeknown to him was recovering from another injury and wound up losing all use of that leg as a result of the kick.  Even though that level of injury could not have been predicted, the court held the boy liable for the entirety of the harm because the kick was unlawful.

Physical Contact Not Required
Physical contact is not required for the eggshell skull doctrine to apply.  For example, if a tresspasser's wrongful presence on someone's property is so terrifying that the property owner has a heart attack, the tresspasser would be liable.  But even though no physical contact is required, there still must be an underlying tort for liability to exist.

Infliction of Emotional Distress
When I first watched this episode, the tort I immediately thought of was intentional (or negligent) infliction of emotional distress.  Upon reviewing the elements for each, however, neither seems to apply here. Those torts focus on compensating the victim for emotional trauma suffered due to defendant's conduct rather than compensation for a physical injury that occurred.  Whatever emotional distress Norm may have suffered, presumably the bigger issue for his family is the fact that he suffered a heart attack and died.  (I'm a lawyer not a doctor, but I'm gonna assume that counts as a physical injury).

Assault
Norm's family could try to claim that Larry committed the tort of assault.  As discussed here, the elements of assault are: (1) an act by defendant creating a reasonable apprehension in plaintiff, (2) of immediate harmful or offensive contact to plaintiff's person, (3) intent, and (4) causation.  Although Larry was yelling at Norm while holding up his golf club, he was about 20 - 30 feet away from him the entire time.  Therefore, I think it would be a stretch to argue that it was reasonable for Norm to be apprehensive that Larry would contact him in a harmful or offensive way.

Larry's cousin Andy actually has a much better chance at suing Larry for assault.  After yelling at Norm, Larry chases after Andy, shaking his club and yelling at him in that perfect Larry David way, "Are you happy you had the onions?  Crispy onions!  They have to be crispy! I can't eat breakfast unless I have crispy onions!" 

The lesson seems to be this: beware of victims that might have a skull like an eggshell and beware of ordering eggs with crispy onions.

"LAWYERED!": The Fight Over Assault and Battery on How I Met Your Mother

 











"I can't go to prison!  I mean, I could get a lot of reading done, finally write some short stories, work out all the time. . . ." -- Ted Mosby 


Let me begin by saying how much I love How I Met Your Mother!  I was not interested in watching it at first because the title was misleading.  I assumed that it was a typical family sitcom where the husband is fat and stupid and the wife is hot but nagging.  As it turns out, HIMYM is about a family - as Bridget Jones would say, an "urban family."  Five friends in their 20s and 30s in a big city, who have a regular watering hole, spend the holidays together, and both support each other and rib on each other.  It's often compared to Friends because of this, but for whatever reason I never saw myself in those characters the way I do in Ted, Robin, Marshall, Lily, and Barney (well, maybe not Barney).  While the premise of the series is how Ted meets the mother of his two children (told in flashbacks from the year 2030), it is really about how his 20s and 30s shaped him into the person he ultimately became.

Midway through Season 4, recently-left-at-the-altar Ted decides that he is tired of being the nice guy and wants to engage in the classic male rite of passage: a fight.  When three guys sit in the gang's regular booth at MacLaren's, an ill-tempered bartender suggests that they all take it outside.  By the time Ted and Barney get to the back alley ready to fight, the bartender has already knocked the booth-thieves out cold.  Crazy bartender, however, assumes that Ted and Barney were actively involved.  Greeted by free drinks for life and attention from all the ladies in the bar, Ted and Barney don't bother to correct anyone.  But, the next time they come to the bar, the guys sitting in their regular booth are process servers.  Ted and Barney learn that they are being sued for assault.

Assault and Battery

Whenever assault is mentioned in casual conversation, most lawyers are obnoxious enough to point out that punching someone in the face is not technically considered assault; if it involves a "touching" it is actually battery.  Assault (and battery) is both a tort and a criminal offense. 

The common law tort definition of battery is harmful or offensive contact to plaintiff's person.  Punching someone in the face would definitely be considered battery.  Assault, however, refers to the part where you swing back your hand, clench your fist, and stare down your victim.  The tort of assault is defined at common law as an act by defendant creating a reasonable apprehension in plaintiff of immediate harmful or offensive contact to plaintiff's person.  If the plaintiffs here thought that Ted and Barney punched them, they most likely would have sued for assault and battery. 

Marshall, the lawyer of the group, messes with Ted and Barney by telling them that they will likely face serious prison time, even though he knows it is a civil suit not a criminal charge.  The crimes of assault and battery are defined slightly differently than the torts of the same name.  Battery is an unlawful application of force to the person of another resulting in either bodily injury or an offensive touching. Common law assault, on the other hand, is either an attempt to commit a battery or the intentional creation of a reasonable apprehension in the mind of the victim of imminent bodily harm.  The doctrine of merger also applies here.  Merger prevents the prosecution of lesser-included offenses like attempt.  For example, you cannot be charged with murder and attempted murder of the same victim.  Since assault is essentially attempted battery, once a touching of the victim occurs, the defendant may only be charged with battery.  If Ted and Barney were prosecuted and these common law definitions applied, they would be charged with battery, not assault. 

However, the New York Penal Law differs from the common law in that it only penalizes "assault," which more closely resembles common law battery.  Most applicable to Ted and Barney is "Assault in the Third Degree": "A person is guilty of assault in the third degree when . . . [w]ith intent to cause physical injury to another person, he causes such injury to such person or to a third person."  New York Penal Law Section 120.00.

Luckily for Ted and Barney, they faced neither civil or criminal liability.  Plaintiffs dropped the lawsuit once Marshall explained that the defendants were wusses, supported by evidence that Barney gets weekly mani-pedis and that Ted played the hammered dulcimer in the Pre-Reformation Dance Society at Wesleyan.

As Marshall Eriksen would say . . . LAWYERED!