Torts Prof Blog examined Section 104 (now numbered Section 4), Purposeful Infliction of Bodily Harm, of the Intentional Torts to Persons Project, with regard to the Kurt Eichenwald seizure incident.

Mr. Eichenwald, a journalist who has been critical of President Donald Trump, was sent an image via Twitter that intentionally caused him to have a seizure. The tweet read, “you deserve a seizure for your posts.” Mr. Eichenwald filed paperwork in a Dallas court asking Twitter to identify the person who sent the tweet, and Twitter has indicated that it will turn over the data on the user.

The question now is whether liability would be recognized under Section 104, which reads:

§ 104. Purposeful Infliction of Bodily Harm

An actor is subject to liability to another for purposeful infliction of bodily harm if:

(a) the actor purposely causes bodily harm to the other, either by the actor’s affirmative conduct or by the actor’s failure to prevent bodily harm when the actor has a duty to prevent such harm …

Comment b.  … This Section recognizes intentional-tort liability in a small group of cases in which the contact requirement of battery liability is not satisfied but in which the actor’s culpability is especially pronounced.

Project Reporter Kenneth W. Simons of UC Irvine School of Law said in the post:

What is especially interesting about this case is:

(a) It is doubtful that battery liability would be recognized on these facts, given the difficulty of proving that the defendant’s interaction with the plaintiff satisfies battery’s contact requirement;

(b) It is quite possible that liability would be recognized under Sec. 104 of the Restatement Third, Intentional Torts to Persons (Tentative Draft No. 1, April 8, 2015, approved by American Law Institute).

Jennifer Morinigo

The American Law Institute


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