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If it turns out that he can only prove physical harm, or only apprehension of immediate harm, that does not mean it is improper to plead both torts in his complaint.
Plaintiff Kurt Eichenwald was a journalist and author currently living in Texas. Plaintiff wrote for Newsweek and Vanity Fair. He worked for years at the New York Times, has authored four books, and has won several awards including the George Polk Award. He was an active Twitter user, having posted over 50,000 tweets. Plaintiff also had epilepsy. During the 2016 election, Plaintiff was often critical of then-candidate Donald J. Trump and expressed those views in his writing and on his Twitter account. As a result, Plaintiff received numerous threats and messages over the Internet. On December 15, 2016, a Twitter user with the handle @jew_goldstein, replied to one of Plaintiff's tweets. The tweet included (and immediately displayed) a Graphic Interchange Format (GIF) that contained an animated strobe image flashing at a rapid speed. The GIF also contained the message "YOU DESERVE A SEIZURE FOR YOUR POSTS." Upon seeing the rapidly flashing GIF, Plaintiff suffered a severe seizure. Apparently, the GIF of strobing images produced electrical signals which can trigger seizures in certain individuals with epilepsy. Defendant John Rivello, from Maryland, operated the @jew_goldstein account. Defendant discussed with others his intent to harm Plaintiff by causing a seizure. Defendant was arrested on March 17, 2017, and three days later a grand jury indicted him for the offense of aggravated assault with a deadly weapon. Plaintiff continued to suffer as a result of the December 15 seizure. With the criminal case against Defendant still pending, Plaintiff filed a civil case against Defendant in this Court on April 24, 2017. Plaintiff brought four claims: (I) battery, (II) assault, (III) intentional infliction of emotional distress, and (IV) "purposeful infliction of bodily harm/prima facie tort under Texas law.” Defendant moved to dismiss counts I and IV.
Were the plaintiff’s claim for both battery and assault improper?
Texas courts' reliance on the Texas penal code in civil cases, and the Texas penal code's combination of common law assault (threatening another with imminent bodily injury) and common law battery (harmful or offensive touching), has resulted in "a number of civil courts mixing them together under the term 'assault.'" Carter v. Diamond URS Huntsville, LLC, 175 F. Supp. 3d 711, 741 (S.D. Tex. 2016). Although the two torts are related, they are conceptually distinct. Assault is redress for threatened, but non-consummated, harmful touchings; battery is redress for actual harmful, or offensive, touchings. "Texas courts have recognized private causes of action for both assault and battery for well over a century." City of Watauga v. Gordon, 434 S.W.3d 586, 589 (Tex. 2014). Whatever the label given to the cause of action, under Texas law a plaintiff can assert a cause of action for common law battery, i.e. for "intentionally, knowingly, or recklessly causing bodily injury or intentionally or knowingly causing physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative." Tex. Penal Code Ann. § 22.01(a)(1), (3). Insofar as Defendant's argument is that Plaintiff cannot bring a battery claim at all under Texas law, Defendant is incorrect. See Chennault v. Chennault, NO. 12-17-00295-CV, 2018 Tex. App. LEXIS 1367, 2018 WL 992115, at *4 (Tex. Ct. App. Feb. 21, 2018). Plaintiff alleged that Defendant's intentional tortious conduct a) caused him to suffer physical harm and b) put him in fear of immediate physical harm. Under Texas law, he can recover for both. If it turns out that he can only prove physical harm, or only apprehension of immediate harm, that does not mean it is improper to plead both torts in his complaint. Furthermore, at least at this early stage Plaintiff can plead as many alternatives, or even inconsistent, causes of action and legal theories as he pleases. See Fed. R. Civ. P. 8(d). Ultimately, Texas recognizes both assault and battery and Plaintiff may plead both assault and battery. The Court will not dismiss Count I on these grounds.