Should tapping veiled woman on the shoulder be actionable? Law institute says yes; law prof says no
As many readers will recall from their law school torts class, a defendant who has injured an unusually sensitive plaintiff likely won’t win by arguing that a different person would have been OK.
But does the American Law Institute go too far, in its latest restatement of torts, by suggesting that a man tapping a veiled Muslim woman on the shoulder to ask for directions has committed an actionable battery? That is the question raised by Chapman University law professor Ronald Rotunda in an op-ed piece in the Wall Street Journal (sub. req.).
Rotunda apparently believes the answer to that question is yes. He argues that while it is wrong to engage in conduct that is offensive to others, that doesn’t mean the incident of impolite behavior should wind up in front of a judge.
The law professor also points to the restatement’s treatment of an unrelated case, in which a court dismissed a tort claim over a supervisor’s cigar-smoking, as problematic. That same case today “would very likely result in liability,” the ALI writes.
