This is the third in a series of posts on the finger incident. (See the first post here). This post will focus on tort issues, which are fascinating. There are three major actors who we will be discussing: The company, employee, and customer.
The first question: Has the company committed a tort? The answer is almost certainly yes. By serving a finger in custard, the company is breaching its duty to the customer. There is a products liability claim, and maybe an IIED (intentional infliction of emotional distress, for our three non-lawyer readers) claim.
An interesting question is whether this could be considered battery. Is the placement of a finger an unwanted touching? On the one hand (no pun intended), it is physical contact with the body part of another.
On the other hand, I’m reluctant to call this battery. As a general matter, an object may be used to batter, but only if connected to a person. If I hit Dan with a baseball bat, that action is battery. If I serve Dan a custard with a baseball bat in it, he might be able to sue for other things, but I don’t think that I’ve battered him. And the detached finger seems like such an object.
A second question is whether the employee has committed a tort. It’s not clear that the employee would be liable for a products liability claim. The battery claim is also possible, but I remain unconvinced.
In addition, there may be duty issues attaching to the employee. Does the employee owe a duty to customer? Maybe. (And, was the employee’s act negligent? I would say it probably was — it’s not normal to serve finger-containing custard.)
Finally, has the customer committed a tort?
Here, there are a few possibilities. In particular, battery and IIED seem like intriguing possibilities.
Is the retention of the finger an unwanted touching? It’s certainly a novel claim. For a battery claim against the customer, the detached object isn’t an issue — the customer is using his contiguous body to do the touching. The problem, however, is that the touched part is detached.
Do I have a right to protect against the touching of my possessions, when they aren’t on my contiguous person? If Dan touches my baseball bat after I set it down, can I accuse him of battery? I’m not convinced.
What about conversion, then? Ahh, here we run into Moore v. Regents, which I’ll discuss in the property section (infra). It seems possible to bring a conversion claim, but it’s also novel.
(Other little odds-and-ends — 1. What about false imprisonment? Hmm, unlikely. 2. Can the customer assert self-defense? He was just battering back at the finger that battered him first? Also unlikely, I think).
But the biggest problem with any tort claim against the customer is going to have to be duty. Does the customer owe a duty to the employee? And if so, what duty is it? This seems awfully like the Kitty Genovese case. Absent a duty, people may legally refuse to aid others. We may not like it when they do so, but there’s no tort liability absent a duty.
Did the customer at any point assume a duty? Did he assume a duty on going into the store? No. The fact is, he could stand by and watch as employee has a heart attack and dies, and he would have no duty to dial 911.
Did he assume a duty by starting a resuce, and have a duty not to make it worse? Not really. He never started to aid the employee. In fact, he would be perfectly within his rights, had he gone home and found the finger there, to simply throw it in the trash.
The bottom line is that there is no tort liability for the customer, because he has no duty to the employee.
Posted by Kaimi Wenger on May 12, 2005 at 12:42 AM
Comments
First, a clarification. “Duty” is not an element in most torts. The concept of duty arose (in British common law, anyway) as an element of negligence which distinguishes tortfeasors (who negligently breach their duty of care) from non-tortfeasors (whose connection is so remote as to remove any duty they might have). It isn’t an element in trespass, for instance.
As regards the issue of battery, I would argue that trespass to the person and trespass to goods are historically closely linked and by holding the finger against the worker’s will the customer would have been guilty either of battery or conversion. For the customer to escape liability he would have to argue that the finger is neither property nor part of the worker’s body. The doctrine that “there is no property in an unburied corpse” should not be applied here, because the finger is not part of the class of “unburied human remains”. The whole point of retrieving the finger is to have it reattached, not to possess it until burial. It is not something which ought to be buried and it is only unburied in the sense that you or I are presently unburied.
Anyway, what the worker should have done is to retrieve the finger by force. This would have been practically better, and would also have turned the tables on the customer. The worker has a right to possession of his body, and his property, and (as his own executor) he has a right to possession of his corpse. Under every construction the worker would have been justified!
Posted by: Joe in Australia | May 14, 2005 9:47:19 PM
Did the customer make the situation worse by taking the finger home? I’m not convinced.
We’re at the time the customer discovers the finger in his custard. At that point, he may have a duty not to make it worse. But it’s already not attached.
Giving it back and allowing it to be reattached is a good-samaritan kind of thing to do. But there’s no duty to be a good samaritan.
If the customer just stood around the store for twenty-four hours (not returning the finger) would he be breaching a duty?
A second question comes out of the retention of harmful property. The customer wasn’t holding on to the finger just for fun, but because it was a piece of property that harmed him and was potential evidence in his own case.
If Dan drops his vintage 2000-year-old Mongolian scimitar on my foot and injures me with his property, I think I’ve got a pretty good claim to hold on to the scimitar for as long as required to vindicate my own tort injury. Dan may suffer from my retention of his property, but that property was something that injured me, and I conceivably suffer if I _don’t_ get to hold onto it.
Posted by: Kaimi | May 12, 2005 5:03:27 PM
Disagree on the duty to rescue point. Once the store manager asked for the finger back, by taking it home the customer made the employees’ situation worse. Also, I think the finger properly belonged to the employee, so there’s probably some tort involved there.
Posted by: David Bernstein | May 12, 2005 9:29:46 AM
While I might agree that the employee with the lost finger might be unable to recover in a negligence action, in Ohio at least there appears to be a cause of action for IIED.
In order to recover on an action for intentional infliction of serious emotional distress four elements must be proved:
1. that the actor either intended to cause emotional distress or knew or should have known that actions taken would result in serious emotional distress to the plaintiff;
2. that the actor’s conduct was so extreme and outrageous as to go “beyond all possible bounds of decency” and was such that it can be considered as “utterly intolerable in a civilized community,” 3. that the actor’s actions were the proximate cause of plaintiff’s psychic injury; and 4. that the mental anguish suffered by plaintiff is serious and of a nature that “no reasonable man could be expected to endure it” Pyle v. Pyle, 11 Ohio App.3d 31, 34, 463 N.E.2d 98 (Ohio App., 8th Dist. 1983).
By refusing to return the finger when there exists the possibility of reattaching it and the employee regaining its use, it would appear to me that the costumer has acted in a way that would allow a jury to find that all four elements are present.
Posted by: Tshaka Randall | May 12, 2005 8:46:39 AM