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26. If the woman sues the passenger to recover for the back injury, will she be likely to prevail?
A bus passenger was seated next to a woman whom he did not know. The woman stood to exit the bus, leaving a package on the seat. The passenger lightly tapped the woman on the back to get her attention and to inform her that she had forgotten the package. Because the woman had recently had back surgery, the tap was painful and caused her to twist and seriously injure her back.
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B is incorrect. This answer correctly states that the woman cannot prevail, but it misstates the legal basis for this conclusion. It is true that the woman would have to prove that she thought that she was about to be touched in order to recover in an action for assault. But the elements of a negligence or a battery action could be established without any reference to whether she had an apprehension of this or contact of any other sort. The reason she cannot recover, despite being seriously injured, is because she gave no indication that she did not want to be subjected to the ordinary touches that are part of life in a crowded society. The passenger's touch was neither unreasonable nor inconsistent with ordinary social norms privileging such contacts.
C is incorrect. People are presumed to have consented to the ordinary contacts of daily life. Although the passenger intended to touch the woman, he did not intend a harmful or offensive touching, and the woman gave no indication that she did not want to be subjected to the ordinary touches that are part of life in a crowded society. The touch was neither unreasonable nor inconsistent with ordinary social norms privileging such contacts.
D is incorrect. Serious injury is neither necessary nor sufficient to support either battery or negligence, although some damage would be required to recover in negligence. Here, although the woman was seriously injured, she will not prevail because she gave no indication that she did not want to be subjected to the ordinary touches that are part of life in a crowded society. The passenger's touch was neither unreasonable nor inconsistent with ordinary social norms privileging such contacts.