this would probably fit frolic and detour under common law and the employer would not be vicariously liable. however no jurisdictions apply strict common law definitions of vicarious liability so it's going to depend. also not sure how the employer being the federal government factors in.

(http://www.autoadmit.com/thread.php?thread_id=5280752&forum_id=2#45861979)

If it is a battery, it's an intentional act and plaintiff couldnt even recover against the slackjaw employee directly as intentional acts are barred from auto insurance coverage, much less from the USPS under an umbrella federal exclusion statute barring things that "look like" battery.

(Most PI guys will have to plead "intentional acts" as negligence now and again to try to get coverage under policies. It's not that unheard of--AND there were other counts that had been dropped by the time of appeal)

Under applicable state law a loud noise intentionally inflicted had not been determined to be battery. No applicable state law case said soundwaves constitute battery. No federal case said that either. Some states say it but it develops over time and with consideration, with limiting factors and limiting elements, but not in the state at issue.

If making a loud noise is a battery then every faggot gunning their car at a traffic light for the purpose of being obnoxious is committing a battery that could sound in court.

If the act was deemed "negligent" then theoretically the US would be on the hook for damages assuming the facts in discovery supported management acquiescence to some degree.

Tough situation--just trying to find a remedy for this plaintiff who it was alleged had permanent hearing loss as a result of some government workers fucking around.

(http://www.autoadmit.com/thread.php?thread_id=5280752&forum_id=2#45862082)

yeah, i answered this as an MBE question rather than a practical application considering it would be impossible without knowing the jurisdiction anyway.

i have to imagine there is some case law where a loud noise can be battery if it is clearly intentionally and so loud it can cause injury. you are using a device that compresses airwaves that damage a persons ear. this is no different than using any other device that can injure someone. the difference between loud cars and something like this is loud cars can't cause injury. and even if they could that would be more akin to negligence since people with loud cars aren't intending anything, they're being negligent.

(http://www.autoadmit.com/thread.php?thread_id=5280752&forum_id=2#45862118)

There was a criminal case in the applicable state where a high school kid beamed a lazer pointer in a cops eyes when the cop was at a school giving a presentation. for criminal purposes this was deemed to be a battery ebcause of "photons of light" or a substance intentionally sent to make contact. There was dicta that said light waves or sound waves could conceivable constitute battery under the right circumstances in this Criminal case but there were other cases that declined to make that connection in a civil action.

Because the judges dont practice shitlaw they got hung up on the prank aspect (which they did not cover in their decision and which defense counsel and I both agreed was not going to stop the action at the pleading stage) and they also seemed unaware that the whole thing was driven by trying to find insurance coverage. Lemme tell you, state court judges, even at the appellate level, would 100 percent know that it was pleaded that way to try to find some coverage. Probably same outcome but who knows.

If we pleaded it as battery against the employee there would be no coverage--intentional act. If we pleaded it as negligence against the employee the USPS would be pulled in and under sovereignity principles the claim would also be blocked.

It was not my case w the pleadings and the brief, just fyi.

(http://www.autoadmit.com/thread.php?thread_id=5280752&forum_id=2#45862142)

this hypo *is* battery if you were answering on a law school exam. but even though it is legally battery it could also fit all the elements of negligence, and a lawyer could choose to plead this way for practical purposes.

it's no different than someone intentionally hitting someone with a car. car insurance normally covers that even though it is a per se battery, right? a lawyer would just choose to plead it as negligence so that it would be covered, because even though it's battery it would also satisfy all the elements of negligence.

(http://www.autoadmit.com/thread.php?thread_id=5280752&forum_id=2#45862249)

If someone intentionally rams someone else's car with their own then it is *not* covered under tortfeasor's insurance. It would be an intentional act that is specifically excluded.

(Now if the victim has UIM coverage, that could kick into place upon the legal foreclosure of other possible remedies, but that's the victim's UIM policy.)

(http://www.autoadmit.com/thread.php?thread_id=5280752&forum_id=2#45862291)

If i had to guess rather than look up the file I think the assault portion came under the same federal statute at issue for the battery claim, but was more EXPLICIT that an assault would also be barred under fed statute. And so that count was dropped on appeal.

(http://www.autoadmit.com/thread.php?thread_id=5280752&forum_id=2#45862314)

but assault and negligence have similar elements to battery. the difference being that in an assault no (physical) injury occurs. and that in negligence there was no intent. if an injury occurred and there is a dispute over how much the tortfeasor intended his actions, then it could be arguable whether something is negligence or battery. like in your hypo. thus, negligence is akin to a lesser included offense.

worth noting that there is no such thing as a "lesser included offense" in torts. i'm just using it is an analog.

(http://www.autoadmit.com/thread.php?thread_id=5280752&forum_id=2#45862325)

Yeah, as i said above i think the first atty probably did plead an assault count just to cover the waterfront but as I said i think that was squarely excluded by a case's application of the federal excluding statute that came down in the interim so wisdom and ethics would dictate abandoning that cause of action before argument.

Basically what i tried to do was to exploit the fact that there was no case in my state or in federal law saying that noisewaves could constitute a battery as that term of art is typically defined. Because there was no caselaw making that connection, the argument was that the excluding statute excluding battery could not apply. At least that was the argument. And you can see what the court did with it lol.

Win some lose some run it up the flagpole and see.

FWIW given the comments in dicta from the fourth circuit on this case, one could potentially argue NOW in my state court that soundwaves constitute a battery. And actually, I recall now that I got a call from another atty about a year ago trying just such a theory in state court.

(http://www.autoadmit.com/thread.php?thread_id=5280752&forum_id=2#45862362)

As plaintiff's atty Its strange for me to argue Against an expansion of state tort law which was the position plaintiff was in and had to take.

(http://www.autoadmit.com/thread.php?thread_id=5280752&forum_id=2#45862150)

https://youtu.be/2b4RzwyCAfo

(http://www.autoadmit.com/thread.php?thread_id=5280752&forum_id=2#45862012)