Tort Law

Law prof loses assault suit over alleged shoulder grab by colleague

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An Ohio Northern University law professor who sued over an alleged “strong and tight” squeeze of his shoulder by a colleague has lost his case.

U.S. District Judge Jack Zouhary ruled against the professor, Scott Gerber, in a bench trial. “This is a case seemingly ripped from the pages of a first-year torts exam, with the added twist that the parties are, in real life, law school professors,” Zouhary wrote in the Aug. 24 opinion (PDF).

The confrontation occurred in October 2012 after Gerber had words with the law librarian who had hired his research assistant over his initial objection. A law professor, Stephen Veltri, heard about the spat and decided he would speak to Gerber about it in the faculty lounge. Veltri is currently interim dean of the law school and had served as associate dean and interim dean in 2011 and 2012.

Veltri says he saw Gerber in the hallway, placed his hand on his shoulder and told him they needed to talk, according to the opinion. Gerber, on the other hand, says Veltri tightly grabbed his shoulder and began “berating” him. Gerber demanded that Veltri remove his hand, and Veltri complied. Afterward, Gerber sought treatment with a psychologist for mental anguish.

Gerber sought medical treatment for his shoulder a year later, after filing an initial suit. His doctor diagnosed a partially torn rotator cuff, but decided it was not caused by the shoulder grab—a diagnosis that Gerber did not dispute. Gerber was an active weightlifter, and he had shoulder pain dating back to his time as a law student. The doctor did say that, based on Gerber’s account, it was “very plausible” that the shoulder grab exacerbated the tear and caused pain.

Zouhary said Gerber’s suit for battery fails because the shoulder contact was not harmful or offensive. Though Gerber’s doctor thought the shoulder contact could have worsened the rotator cuff injury, he was relying solely on Gerber’s word, offered more than a year after the incident, Zouhary said.

Zouhary also noted testimony by Gerber’s psychiatrist that he had difficulty coping with experiences the way a reasonable person would. But tort law requires the contact to offend the dignity of the ordinary person, not an unduly sensitive one, Zouhary said.

Gerber’s assault claim fails for largely the same reasons, Zouhary said.

Zouhary noted that Gerber and Veltri had a history of conflict. Gerber is “a prolific publisher” who has encouraged others to write more. Veltri has served as associate dean of academic affairs and interim law dean. Veltri once raised his voice to Gerber during a faculty meeting, and Gerber once filed a grievance against Veltri for asking Gerber to teach remedies.

“An observer at trial could be forgiven for assuming this case is about Gerber’s decade-long struggle for appreciation from his colleagues and administrators at ONU,” Zouhary wrote. “But it is not. The complaint, and this trial, concerned simply whether Stephen Veltri assaulted and battered Scott Gerber on October 8, 2012. This Court finds Gerber did not prove his claim by a preponderance of the evidence.

“This class, and this case, is dismissed.”

Gerber did not immediately respond to an ABA Journal request for comment.

Veltri’s lawyer, Connor Kinsey, tells the ABA Journal that “we agree with the decision in its entirety.” He said he anticipates an appeal, based on previous statements by Gerber.

Asked if Veltri is relieved by the decision, Kinsey said that may not be the accurate way to describe his feelings. Veltri likely feels it’s regrettable that the matter came to this point, Kinsey said. “He is hopeful and looking forward to moving beyond this,” Kinsey added.

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