Hi, my name's Don Hornstein. I'm a law professor here at Carolina and I want to show you some ways that lawyers and the law generally approach social problems in order to fashion solutions to disputes between people and even broad social issues that require broad, institutional solutions. For me to do this, however, you can't just sit back and take notes. You have to actively be involved. I've assigned you a few short cases and if you haven't read them yet, you should. To help you with the first two cases though let's give a little background. This first two cases seem very different. One involves a professional NFL football player, and the other involves a young woman emigrating from Ireland to the United States and what happens to her as the ship on which she's traveling approaches Boston Harbor. The one thing these two cases have in common is they both involved the law of battery. In a minute, we'll try to together understand what the law of battery is, but right now let me tell you what it's not. Sometimes when you watch TV, you go to the movies, or maybe in real life, you have seen the police arrest somebody and charge them criminally with assault and battery. If convicted, that person could go to jail for violating the criminal law. The cases we're looking at do not involve the criminal law of battery. There's no police, there's no arrests. Instead, what happens is that one individual, a plaintiff is suing the other, the defendant, for a sort of interference or physical touching that amounts to the civil law of battery. The civil law of battery comes from a species of law called a tort, which is French for wrong. And under tort law if somebody wrongs us, plaintiffs can sue the defendants to receive money compensation to make up for the harm that was caused. So the million dollar question is what is a battery at civil law? To do this, rather than just me telling you what the law of battery is, let me give you a puzzle. And you can figure out the best solution to the puzzle. And that solution will give you an insight into what the law of battery is, of civil battery is. First I'm going to give you three true statements about the civil law of battery. And then I'll give you some choices about a general principle that accurately captures all three statements. Are you ready? Here's statement number one. A man is voluntarily playing a game of recreational football. And in the course of the game, somebody else blocks him, gets in his way, touches him, stops him from going, doesn't hurt him. But after that, the man is so outraged at being touched that he sues the blocker for battery. That man will lose the lawsuit. That was example number one. Here's example number two. A woman is standing in line at a movie theater when all of the sudden she feels something very, very mild on her shoulder. She turns around and to her amazement, the person standing behind her was a doctor who very gently had vaccinated her with a state of the art new flu vaccine. The vaccination didn't hurt. In fact, the vaccine is so effective it will actually help the woman. The woman nonetheless sues the doctor for battery. She will win. Here's the last example. A man is walking down the street when suddenly, out of nowhere another person comes up just hits him square in the face and breaks his jaw. The person who was hit, the plaintiff will sue the defendant for battery. The plaintiff will win. That's our third case. All right, given these three true statements of the law of battery I'm now going to give you three statements of the law and I want you to tell me which of them is the best statement that correctly accounts for all three of the outcomes that we just described. Are you ready? Here's choice number one. A battery occurs whenever anybody touches you. Two, a battery occurs whenever somebody touches you and causes harm. And number three, a battery is any unconsented to touching. Why don't you decide right now which of those three is the best answer and mark it down. And then we'll compare your answers to everybody else's. If you picked number three, you're right. A battery at civil law is any unconsented to touching. Well, now that we understand what a battery is, let's look at our two cases. The one involving the NFL football player and the other involving the young immigrant from Ireland. The football player case is Hackbart versus Cincinnati Bengals. And it's a famous case in the law in part because it was one of the first sports law cases in which anybody in organized sport was to able to bring a lawsuit successfully for something that happened in the game. In this case, you have an NFL football player Dale Hackbart, who was a 13 year veteran of the NFL. He'd been around a long time. He played for the Denver Broncos, and they were playing a game against the Cincinnati Bengals. During the game, at the moment where the play would unfold then which Dale Hackbart would be injured, the Denver Broncos and Dale Hackbart were playing defense. And Dale Hackbart what was known as a defensive back. His job was to stay in the back field and if anyone came out running the ball or going downfield to try to catch the ball, to stay with them and when it was appropriate, stop the ball from advancing. On the other side a rookie in his first year in the NFL, Boobie Clark, he went by Boobie, was a running back. His job was sometimes to be given the ball and run down the field with it or to go downfield to catch a pass. In the case that's about to unfold, Boobie Clark was not going to get the ball. He was going to go downfield as a decoy, and the play would be somewhere else. But of course, Dale Hackbart didn't know that. So, the ball is snapped, all of a sudden Clark goes downfield and Hackbart stays right with him. The ball is thrown on the other side of the field, and then, there's an interception. Someone from the Denver Broncos intercepts a ball that was intended for one of the Cincinnati Bengals, and suddenly the teams' positions on the fields are reversed. Suddenly, the Denver Broncos have the ball and are on offense going the other way, and the Cincinnati Bengals have to stop them. Way over on the other side of the field, Hackbart and Boobie Clark see this happening. And in an instant, realize their roles are reversed. Hackbart just sort of tries to stop Boobie Clark from running over to the field to help, and they both sort of fall down. The ball is whistled dead over on the other side of the field. And the players and the teams are about to change sides. At just that moment, well, Hackbart was just getting up on one knee and looking straight ahead, from behind him, after the whistle has long blown, Clark comes and smashes in to the back of Hackbart's neck with his arm. There was no play on the ball. The ball wasn't even there. There was no play at all. The time had been called. Nobody saw it. A foul wasn't called and the players didn't really complain. Hackbart got up and just trotted to his side of the bench and Clark went to the other frustrated that his team was losing. Unbeknownst to Hackbart and to everybody, Hackbart had broken his neck, and one of his vertebrates had been smashed. Because football is a tough sport, he thought it was a little sore but continued to play the rest of the game. For the next two games, although he complained about sort of a stiff neck and got treatment, he still tried to play. Until finally, the pain got so bad, he had it correctly diagnosed and they realized what had happened. Once they realized what it happened, Dale Hackbart's professional football career was over. Hackbart sued Boobie Clark and Clark's team, the Cincinnati Bengals, for battery, for an unconsent to touching. At trial, there was a huge amount of evidence put forth about how violent NFL professional football teams play and how violent the game is. And at the end of the evidence, the trial court, the judge ruled as a matter of law that this game is so violent, there really is no room to argue that a battery could occur. The whole game is practically a battery. And the players know this going into. So even though there was a touching, it was hardly unconsented to. It could never be unconsented to. Everybody knows what you're getting into when you become a professional football player. So as a matter of law, the trial court held, no battery had occurred. The case we read is what happens on appeal to the 10th Circuit Court of Appeals when the appellate judges hear this argument and pose the question to themselves. Is it really true that, as a matter of law, there is no type of touching of battery that could occur in professional football? Without me telling you the result, did the Appellate Court, after you've read the opinion, did the Appellate Court uphold the lower court's decision? No battery? Or reverse, and send the case back for further development at trial? Which one happened? Did the court accept and affirm the lower court decision or reverse? If you picked reverse, you're right. The Appellate Court held that under the facts of this case, there is some evidence that what happened on the field, the thing we just described, actually may have been so outside the rules of the game. That it really wasn't what Dale Hackbart signed up for. It really wasn't the sort of thing he had agreed to when he became a professional football player. I am curious, do you agree, or disagree, with that result? I won't judge what your answer was. I can tell you that since this case, there have been numerous other examples where things that happen on the playing field, both at the college level and even in the professional level. Nonetheless, could under extreme circumstances, lend themselves to a claim for a tort, a battery. And the consent just didn't go far enough for this sort of a thing. I won't ask you about it, but if you've been following the NFL stories about concussions, you might being to wonder whether or not players really did consent to play in a game in which concussions are as common and as devastating, as we're increasingly learning that they are. And you can see that the significance of the Hackbart case was well beyond just this one game. But that's Hackbart, we'll come back to Hackbart as a precedent in a moment. But for now, let's look at the other case I had you read, O'Brien versus Cunard Steamship lines. O'Brien was a young woman traveling with her father to the United States where she was going to emigrate. Her ship was going to disembark in Boston. And the ship, as it approached Boston, was owned by the Cunnard Steamship lines. As they approached Boston Harbor, the Cunard Steamship lines provided a physician, a doctor to vaccinate anybody who needed vaccination against smallpox. Because smallpox vaccination were required Before you could enter the United States. And if you didn't have a smallpox vaccination, you would be quarantined for a period of time, a week, ten days, even two weeks, before you were allowed to enter. To save their passengers the risk of quarantine, free of charge, the Cunard Steamship line provided the vaccine. They put signs telling up people that they wanted be vaccinated, to assemble down below in an area of the ship, and it would happen. At trial, the trial court held that there are no circumstances in which anyone could doubt but that this young woman, O'Brien, voluntarily agreed to be vaccinated. And therefore, a claim she subsequently brought for battery after the vaccine, in fact, caused her some horrible reaction, with blisters all over her body and so on. Of const occurred. Do you agree with this holding? When you read this case, did you think there was no evidence at all that suggests that this young woman may in fact not have agreed, have consented to the vaccination. Let me ask you right now just a yes or no question. When you read this case do you agree yes, there's no evidence that she didn't consent. She definitely consented. Or, no, I actually think there might be some evidence. If you clicked yes, you at least had good company. That's what the trial court found. But if you answered no, you also have some very good company. For this case has been looked at and the transcript of what happened at trial has been examined for many years since this case came down. You may have noticed, for example, that the trial court's statement that the plaintiff O'Brian could have read that in fact there were going to be vaccines and therefore knew what was going on, is questionable. Because she had to ask people what was going on. Which suggests, as is entirely possible, that as a young, poor immigrant from Ireland, that she didn't know how to read. And the signs didn't inform her what would happen. There's also evidence you may have seen if you read carefully, that O'Brien held back to see what was happening. And when her turn finally came, although the trial courts said she gave no evidence that she didn't want to be vaccinated. She actually said to the doctor, I've been vaccinated, I've been vaccinated before. The doctor didn't even acknowledge this and said, well I'm going to vaccinate you and then did. Here's my question. Do you think focusing on that evidence, that there might be some evidence that Mary O'Brien, in fact, did not really, fully consent to the vaccination? What's your thought? Yes or no? If any significant number of you answered yes, there may have been some evidence then we have some reason to think that the trial court was too quick to take this case away from the jury. Because after all, a battery occurs with any unconsented to touching. Even touching by a vaccination that otherwise is designed to help you. We saw that in one of the hypotheticals I gave you, remember? The person standing in line at the movie theater who's vaccinated. The principle between these two cases however, is that they both agree on what the law of battery is. Any unconsented to touching. They disagree about whether or not consent was given in the two cases. Let me ask you one last question. Just to see if you understand these cases critically. If two young adults engage in consensual sex they both know that they are going to have sex, but unbeknownst to one of them. The partner has a sexually transmitted disease and doesn't tell the other about it. And then, the STD, in fact, is transferred. Do you think the victim could bring a claim in battery? That even though there was consent, there wasn't consent to fully capture what happened in this case. If you answered yes, which of the two cases? The football case, Hackbart or the O'Brien Conard Steamship Lines' case. Do you think might be the best precedent for the person claiming that there was a battery despite the general consent that I gave. If you picked the NFL case, Hackbart I would agree with you. Because that's an example where even though Dale Hackbart as a professional football player agreed to the everyday risks of playing professional football. There were some things that were outside the bounds of the game. And the analogy would be, of course, that the STD was also outside the bounds of the consent that was given. And consent given for many things doesn't mean consent for everything. And hence, a battery occurs. But here's a puzzle, and I'll leave you with this puzzle until next time. The basic idea behind battery is that the law protects our individual autonomy, our human agency, our ability to have control over our bodies and what happens to us against outside interference. Even things designed to help us are our choice to make. The law of civil battery in other words, reflects a very strong commitment to individual autonomy. Well, how absolute is that commitment? Remember, if Mary O'Brien didn't get vaccinated before landing in Boston, the laws of the United States required her to be quarantined for maybe two weeks. Almost like locked up in a type of confinement. Under what circumstances can the law actually trump or overrule someone's individual autonomy for the greater good? That's the question we'll look at next time. I'll see you then.
