Court: District Court, D. Maryland; May 31, 2018; Federal District Court
Kurt Eichenwald filed a civil lawsuit against John Rivello on April 24, 2017, related to an incident that is also the basis for criminal charges against Rivello. The case was stayed on August 28, 2017, due to the ongoing criminal proceedings. On March 6, 2018, the court partially lifted the stay, requiring Rivello to respond to Eichenwald's complaint by March 21, 2018. Rivello answered Counts II and III of the complaint and moved to dismiss Counts I and IV. Eichenwald responded, and Rivello has since replied, making the motion to dismiss ready for review without the need for a hearing. The court found Rivello's interpretation of Texas civil battery law incorrect and allowed Eichenwald to pursue Count IV in another court or later. The court granted in part and denied in part Rivello's motion, dismissing Count IV without prejudice.
Eichenwald is a journalist and author based in Texas, known for his work with Newsweek and Vanity Fair, and has a history with the New York Times. He has won multiple awards, including two George Polk Awards, and is an active Twitter user. Eichenwald has epilepsy, diagnosed at age 18, which has been managed with medication, although he continues to experience seizures. He has publicly discussed his condition and has faced online harassment, particularly during the 2016 election while criticizing then-candidate Donald Trump. Notably, he documented an incident of harassment where a Twitter user sent him an "epileptogenic" video that could trigger seizures, although he did not suffer a seizure as he quickly dropped his device.
On December 15, 2016, Plaintiff received a tweet from user @jew_goldstein, which included a rapidly flashing GIF accompanied by the message "YOU DESERVE A SEIZURE FOR YOUR POSTS." This GIF triggered a severe seizure in Plaintiff. The document explains the physiological process involved, noting that light waves from the GIF struck Plaintiff's retina, converting into electrical impulses that could induce seizures in individuals with epilepsy. Plaintiff's wife witnessed the seizure and contacted the police. Following an investigation, it was revealed that Defendant operated the @jew_goldstein account and had expressed intent to harm Plaintiff. Defendant was arrested on March 17, 2017, and subsequently indicted for aggravated assault with a deadly weapon.
As a result of the seizure, Plaintiff suffered further health complications, including additional seizures and the need for increased medication, which impaired his daily functioning and caused emotional distress. On April 24, 2017, while the criminal case against Defendant was ongoing, Plaintiff filed a civil lawsuit asserting four claims: battery, assault, intentional infliction of emotional distress, and purposeful infliction of bodily harm/prima facie tort under Texas law. The civil case was stayed pending the criminal proceedings; however, the stay was partially lifted, requiring Defendant to respond to the complaint by March 21, 2018. Defendant answered two of the claims and moved to dismiss the other two, with the motion now fully briefed and ready for the Court's decision.
A complaint must present sufficient factual matter that, if accepted as true, states a plausible claim for relief. This plausibility is established when the plaintiff provides factual content allowing reasonable inferences of the defendant's liability. Merely suggesting a possibility of misconduct is inadequate; claims must rise above speculation and cannot rely on vague assertions or legal conclusions masquerading as factual allegations.
The Court has jurisdiction under 28 U.S.C. 1332 due to diverse parties and an amount in controversy exceeding $75,000. In such diversity cases, the court applies the substantive law of the state in which it sits, adhering to Maryland's choice of law rules. According to the lex loci delicti principle, the substantive tort law of the state where the injury occurred governs. Since the plaintiff alleges harm in Texas, Texas tort law will apply, as acknowledged by the defendant.
The defendant has moved to dismiss Counts I and IV of the complaint, arguing: (1) Texas law recognizes only assault, not civil battery; (2) the battery claim fails due to the absence of alleged physical contact; and (3) the claim in Count IV is not recognized as a tort in Texas and should be dismissed with prejudice. The Court will evaluate each of these arguments individually.
Defendant seeks dismissal of Plaintiff's battery claim, asserting that Texas law does not recognize battery as a tort. This argument is incorrect; Texas law defines assault consistently across civil and criminal contexts. Under the Texas Penal Code, assault involves intentionally, knowingly, or recklessly causing bodily injury, threatening imminent bodily injury, or offensive contact. Texas civil courts often conflate assault and battery terminology, yet the two torts are distinct: assault addresses threats of harmful contact, while battery pertains to actual harmful or offensive contact. Texas courts have upheld private causes of action for both torts for over a century. Therefore, under Texas law, Plaintiff can assert a claim for common law battery.
Defendant's alternative argument suggests that Plaintiff cannot pursue both assault and battery claims, as they are allegedly merged into one cause of action. This interpretation also fails; Plaintiff's allegations encompass both physical harm and fear of imminent harm, allowing recovery for both under Texas law. Even if Plaintiff ultimately proves only one aspect, he is permitted to plead both claims. Additionally, Federal Rule of Civil Procedure 8(d) allows for alternative or inconsistent legal theories in a complaint. Consequently, Texas law supports both assault and battery claims, and Count I will not be dismissed.
Plaintiff's allegations against Defendant constitute a form of tort under Texas law, specifically relating to battery. The court emphasizes that the fundamental goals of tort law are to deter wrongful conduct, shift losses to responsible parties, and provide fair compensation to victims. Central to tort law is the concept of socially unreasonable conduct that interferes with others' interests. The court notes that the Plaintiff alleges Defendant sent an image intended to induce a seizure, which qualifies as a tortious act that undermines civil society and warrants punishment for deterrence. This conduct is characterized as an offensive contact that violates the dignity of the Plaintiff, representing an intentional invasion of personal integrity. The court highlights that the novelty of the harm delivery method does not diminish its classification as a tort. Although there may be different labels for the tortious conduct, including battery, assault, and intentional infliction of emotional distress, the court will evaluate the allegations specifically under the battery claim, as that is the focus of Defendant's motion to dismiss.
Texas courts derive the definition of civil battery from the statutory definition of criminal assault. A battery in Texas is characterized as the intentional, knowing, or reckless infliction of bodily injury or the intentional or knowing causing of offensive or provocative physical contact with another person (Tex. Pen. Code Ann. 22.01(a)(1, 3)). The legal standard simplifies to the idea that even the slightest intentional touching of another in anger constitutes battery. Importantly, physical contact is a requisite element of battery, and if a defendant can prove the absence of such contact, they can negate an essential element of the case. Physical contact need not be direct or involve the plaintiff's body specifically, as illustrated by cases where indirect contact (such as taking someone's plate) was deemed sufficient to establish battery. Moreover, a defendant can be liable if they cause the plaintiff to come into contact with a harmful element, even if the defendant does not physically touch the plaintiff themselves.
In a relevant case, Hutchison v. Brookshire Bros. Ltd., the court held that a plaintiff's claim survived summary judgment when there was a reasonable inference that a store owner intentionally caused a police officer to force the plaintiff into a harmful situation. Similarly, in Villegas-Hernandez, the Fifth Circuit noted that various acts could constitute battery, including making a victim susceptible to harm through deceptive reassurances. In the present case, the plaintiff alleges that the defendant intentionally caused harmful contact by sharing a strobe GIF, which the defendant knew would provoke a seizure in the plaintiff. This knowledge and intent fulfill the criteria for battery under Texas law, allowing the plaintiff's claim to proceed.
Defendant argues there is no physical contact between Plaintiff and Defendant as alleged in the Corrected Complaint. However, Plaintiff claims that light waves from a GIF emitted by Defendant contacted his retina, triggering a seizure. The court must accept Plaintiff’s allegations as true, including the scientific basis and Plaintiff’s physical condition, indicating that physical contact occurred. Physical force is defined as force exerted by concrete bodies, not merely intellectual or emotional force. Relevant case law supports the notion that intangible elements, such as second-hand smoke, can constitute battery, as seen in *Leichtman v. WLW Jacor Communications*, where tobacco smoke was deemed to have physical properties capable of contact. Similarly, a Georgia court recognized that loud noise can also constitute battery. This court has previously indicated that causing an electrical shock can be regarded as a battery without direct physical contact. In this instance, Defendant allegedly weaponized the electronic capabilities of a computer to inflict harm through a tweet that activated the computer's harmful features. The GIF, therefore, transitioned from a communication tool to a means of offensive physical contact. The impact of the GIF's emitted light was independent of any conscious interpretation of the accompanying message and directly caused the seizure, which would not have occurred in individuals without epilepsy, regardless of the perceived tone of the tweet.
Plaintiff has not provided a Texas case supporting a claim of battery under the specific circumstances of using a laser beam or sonic weapon. However, the Court believes that if a laser was used to intentionally blind someone or a sonic weapon caused permanent hearing loss, Texas courts would classify that as battery, despite the nature of the contact being light or sound. The absence of Texas cases regarding harm from an epileptogenic GIF does not hinder the argument that this situation could qualify as battery under existing tort law. Texas law does not require knowledge of the specific physical reactions to establish intent for battery. The Court finds that the Defendant's alleged intent to cause a seizure through the GIF constitutes a potential battery.
Regarding Count IV, which involves a tort not recognized in Texas, Plaintiff agrees to its dismissal without prejudice. Defendant contends that the lack of recognition means no facts could support relief, warranting dismissal with prejudice. The Court disagrees, asserting that the novelty of a claim does not negate its validity. The evolving nature of Texas tort law does not preclude the Plaintiff from pursuing this avenue. Consequently, the Court will dismiss Count IV without prejudice, allowing the Plaintiff the opportunity to refile in the future if desired.
Plaintiff can pursue claims for both battery and assault, recognized as distinct torts in Texas. The Court finds that Plaintiff has adequately alleged physical contact to support a battery claim, resulting in the denial of Defendant's motion to dismiss Count I. Conversely, Count IV, which Plaintiff concedes is not recognized in Texas, will be dismissed without prejudice as part of the Court's partial granting of Defendant's motion. The Court's evaluation is based on the facts as alleged by Plaintiff, consistent with the standard for reviewing a motion to dismiss. Texas courts often reference Prosser in tort discussions, as evidenced by several cited cases. While a different legal context was addressed in Castleman regarding the necessity of physical force for injury claims, the interpretation of a tweet by Plaintiff is deemed irrelevant to the physical harm caused. The focus remains on the actual physical contact rather than the message's interpretation, which may only pertain to assessing civil assault liability or intent. The analogy drawn compares the alleged scenario to a physical act of throwing an object, emphasizing that any accompanying message displayed at the moment of impact does not influence the determination of battery.
The Court identified relevant cases that, while not decisive, inform the current matter. In **Cotroneo v. Shaw Environment, Infrastructure, Inc.**, the Fifth Circuit did not determine if intentional radiation overexposure constituted "offensive contact" battery under Texas law. In **Samsung Electronics America, Inc. v. Federal Insurance Company**, a Texas appellate court ruled that "bodily injury" in insurance policies extends to biological harm to human cells from cellphone use. The Fifth Circuit in **Marshall v. AT&T** upheld a summary judgment against a plaintiff whose battery claim was based on harmful effects from perfume, stating that recognizing such a claim would create a new cause of action similar to nuisance. The court noted a case from Georgia, **Leichtman**, which recognized tobacco smoke as a potential battery source, but refrained from commenting on comparisons to perfume. Additionally, developments in a related criminal case are relevant, though not controlling; the Defendant was indicted for aggravated assault, defined as assault with a deadly weapon under Texas law. The Grand Jury concluded that the Defendant inflicted harmful physical contact on the Plaintiff, affirming that the Defendant acted intentionally, knowingly, and recklessly.
