Coughing on Someone: Pandemic Division

Years ago, in Cincinnati, a radio station staged a show during “The Great American Smoke-Out”. For those too young, that was a day in which Americans were urged not to smoke at all. The host of the radio show, Pete, was a non-smoker, and he invited Dan, a smoker, on the show to debate or talk—considering what chaos that would engender these days, that’s the last time that happened. (Lawyers in my readership will “pull a wry smile”, to use a hoary cliché, as they recognize the standard law school format: Pete = Plaintiff, and Dan = Defendant.)

Anyway, as the show progressed, Dan pulled out a cigarette, lit up, and blew smoke in Pete’s face. Pete objected, and later he sued Dan in the tort of battery.

Battery in a civil (as opposed to criminal) context entails someone touching someone else in an unwanted way. That is, to resort to a legal definition, it’s the intentional touching of or the application of force to the body of another person, in a harmful or offensive manner, without the victim's consent.

Pete thought, yup, that’s what happened. At first blush, the observer might think, well, it’s just smoke in the air. Ah, that observer is no lawyer! An Ohio state court held that the smoke contained particulates, and, when Dan blew them on Pete, Dan intentionally touched Pete. Particulates resided in the smoke. They touched Pete. It was a battery. Pete didn’t even have to show any injury to recover. He simply had to show that intentional unwanted touching. (This case is described in a genius book, Seeking Civility: Common Courtesy and the Common Law, by G.W. Jarecke and N.K. Plant, noted legal scholars and general wits about town.)

There’s also a civil action known as assault, which is a slightly less egregious tort. Though the common law will differ from state to state, assault means an attempt with unlawful force to inflict bodily injury upon another or, and here’s the crucial part, putting another in apprehension of harm whether or not the actor actually intends to inflict or is incapable of inflicting injury. At bottom, the victim simply has to be afraid of being injured.

Why have I gone through this legal hoo-haw?

It is a way out of not having to put up with people not wearing masks. OK, Washington has lifted its indoors mandate, but who is confident that we won’t be going through this again the next time someone decides to boil an animal with which the rest of us is unfamiliar and unleashes death on everyone?

And when that happens, no doubt the same moronic types will appear, denying that any such virus exists and anyway any efforts to combat it are signs of fascist behavior by our government and vaccines are poison. I trust that the people reading this blog understand how incredibly stupid and/or crazy these people are. So here is how to combat them.

Forgive me, for this will take a second. When I was a baby lawyer in North Carolina, we had a senior partner who had practiced in the really old old days. Like back when the torts of “criminal conversation” and “alienation of affections” still existed. These torts were essentially claims by Pat that Dirk had been boning his wife, and Pat wanted satisfaction. OK, better than a duel, right?

In these enlightened times (haha, joke), the legislators (most of whom had been acting up in seedy motels in Raleigh) decided that these torts shouldn’t survive our world—and these are the same Republican legislators who, well, right, you know what I’m going to say. It’s too tiresome and depressing to detail Republican redneck hypocrisies. However, back when General Hagan, as thus he was known, having held that rank in the Marine Reserve, was in practice, those torts were fair game.

Another crucial point: as I recall, in North Carolina when I was first a lawyer, you didn’t have to file a complaint against someone right away. Pat’s lawyer could instead file a summons to the court and serve it on Dirk or his lawyer if Pat’s lawyer knew him, provided that 30 days later Pat filed his complaint with the court and served it on Dirk.

While a complaint can be pretty bare bones, it at least has to state the facts upon which Pat’s claim is based. A summons is simply what it is: a sheet of paper telling dude he’s been sued.

So one morning, Gennnal Hagan (as thus it was pronounced in the office) received a summons from a Pat’s lawyer naming Hagan’s client, Dirk, as defendant in a lawsuit. The summons gave the parties’ names, of course, and in the claim section, the word “tort” was simply stated. Gennal Hagan, knowing Pat and Dirk and their relationships, inferred that the tort implied by the summons was indeed “criminal conversation” or “alienation of affections.”

Dirk was well known enough in town that Gennal Hagan knew that Pat’s lawyer was sending a gentle message, otherwise known as a gentle kind of blackmail.

Gennal Hagan claimed that he picked up his phone and called the attorney for Pat—every lawyer knew every other lawyer in town in those days—and said, “I received your invitation to make a settlement today.”

All right, back to our theme.

And patience please, for this theme is coming together. I never came close to trying a case in Washington, so I don’t know if the same rules apply, that you can file a summons and that will initiate a lawsuit.

But let’s posit the following hypothetical. I am walking peacefully down an aisle of my local grocery store, Safeway, which is a tort all by itself (the intentional infliction of severe emotional distress), and Declan, sans mask, sneezes directly in my face.

The lawyers at heart among you can see already that we have a battery to deal with: I’ve been intentionally touched in a harmful manner without my consent. Right?

No, your Honor, Declan’s lawyer cries out, they are assuming a fact not in evidence: Declan may well not, and on Bainbridge as opposed to all of the redneck communities in the rest of Kitsap County, probably does not, have Covid. (Discovery via a stick up his nose will determine whether he has Covid, so this exercise is academic, if you will.)

But wait, your Honor! Isn’t this at least an assault? An assault is putting another in apprehension of harm whether or not the actor actually intends to inflict or is incapable of inflicting injury, right? I mean, if he doesn’t have Covid, so he’s incapable of inflicting injury, I’m still in apprehension of harm, am I not?

There are legions of depressing stories of people, anti-vaxxers, anti-maskers, behaving in exactly these ways.

Here’s how to handle them: you’re walking along, anywhere that masks have been mandated. You come among a Neanderthal, knuckle dragging his way along, and suddenly he rears himself up and sneezes on you.

You have equipped yourself with forms used to issue a Summons. You ask the miscreant his name, inscribe it in the defendant’s line (and yours is already in the plaintiff’s line), write “tort” in the claim section, and hand it to him. Then file it in your local county courthouse.

Whatever you do, do not engage this Declan in conversation. Just walk away and let him stew in his own viral juices. You shall see him in court. With any luck, he won’t respond, and you’ll get a default judgment.

I made an awful lot of money for a client in North Carolina that exact way—I sued some farmer for triple damages, and he didn’t respond, hahahaha. Your defendant won’t know how to respond, he/she will not, and the next thing you know, you’ll own her/his house and car. You’re welcome.*

*Not really. You can’t get that kind of damages for an assault, I don’t think. But isn't it the sentiment that counts?

OK, this is just gross, even if it's not a tort.