After George mercilessly mocks “the puffy shirt” and Jerry for wearing it onThe Today Show, Kramer’s girlfriend low talking girlfriend Leslie, the creator of the pirate shirt, pushes George. To brace his fall, George reaches out his newly minted mill white model-hands and burns them on a hot iron, ruining his modeling career. Is Leslie legally liable for the injuries to George’s hands?
Unlike in “The Glasses” where we discussed negligence torts, here we are dealing with an intentional tort because Leslie clearly intended to push George. But how will George prove it? To do so, he will have to show that Leslie acted with intent to cause harmful or offensive contact that resulted in harm or injury. Let’s dissect.
ACTION: As we see in the video above, Leslie certainly acts here when she goes to shove George. This may seem obvious, but it isn’t always so clear. For instance, an unconscious act, such as an act when sleeping, would not cause a person to be a liable for the tort. Additionally, reflexive acts would not count either. Such as, when George has involuntary spasms in “The Non-Fate Yogurt,” he might not be liable for an injury he caused to another person or property as a result of that spasm because he has no control over it. But here, Leslie has neither of these defenses, and therefore it would be easy for George to show that he fulfilled this prong of the law – that Leslie did act here.
INTENT: This would be easy for George to show as well. Leslie directly put her inferior disproportionate hands on George. Here, intent is not the same as motive. Leslie clearly has motive, since George is mocking the puffy shirt. But it’s important to distinguish that from the intent element, which is Leslie’s intent to push George.
HARMFUL OR OFFENSIVE CONTACt: Again, simple for George to show. He did not give Leslie consent for her to shove him. On top of that, shoving a person is generally understood to be offensive contact.
HARMFUL RESULT: George suffered tremendous actual harm and damages – not only immediate physical injury but also long term negative consequences to his career as a hand model. Therefore, George would be able to show all 4 prongs of an intentional tort, and, we believe, a court would hold Leslie legally liable for the injuries to George’s hands.
It’s important to note that while Leslie didn’t make direct contact with George’s hands, and may not have been trying to injure his hands at all, let alone have George burn them on the iron, Leslie is still responsible for all injuries caused by her intentional tort. Unlike for negligent torts, where only foreseeable injuries are liable, a person is liable for all injuries sustained from an intentional tort, foreseeable or not.
But does Leslie have any defenses? Leslie’s only chance is to argue that George’s words were so offensive and provocative that she had no choice but to respond with physical violence. However, it is our opinion that this would not be a successful argument for a few reasons. First of all, most jurisdictions hold that no amount of offensive words are enough to justify a physical response unless there is some overt, threatening act that the provocateur makes as well. George does nothing of the sort here, he only makes fun of the shirt. Second of all, even those jurisdictions that do allow such a defense even without a threatening act demand that 1) the provocateur understands that physical retaliation might be attempted and 2) that the words the provocateur is using are not protected speech under the first amendment. We discussed a bit about exceptions to the free speech clause of the first amendment in “The Yada Yada” and “The Fire,” and neither of these doctrines would apply here. George is clearly not trying to produce imminent lawless actions. And, while a creative a lawyer might try to use “the fighting words” doctrine to support Leslie’s response, courts generally shy away from deeming speech to be illegal. As Justice Harlan wrote “it is nevertheless often true that one man’s vulgarity is another’s lyric.”
Calculating the damages is beyond our expertise, but there is no doubt that Leslie would be liable for the injuries George sustained. George would try to collect not only for the physical injuries to his hands and associated costs of medical treatment, but also for the damage to his career as a hand model. Winning that lawsuit would be far more valuable that anything else George ever won in his life.