Eichenwald v. Rivello

318 F. Supp. 3d 766 · District Court, D. Maryland · 2018

Facts

Plaintiff Kurt Eichenwald, a journalist with epilepsy, was critical of Donald J. Trump on Twitter. He had previously received an epileptogenic video online but avoided a seizure. On December 15, 2016, Defendant John Rivello, using the Twitter handle @jew_goldstein, sent Eichenwald a rapidly flashing GIF. The GIF included the message "YOU DESERVE A SEIZURE FOR YOUR POSTS." Upon viewing the GIF, Eichenwald suffered a severe seizure, witnessed by his wife. Rivello had discussed his intent to harm Eichenwald by causing a seizure. Eichenwald experienced further seizures, increased medication, and required family assistance due to the incident.

Issue

Does Texas law recognize a civil battery claim for intentionally causing physical harm via an epileptogenic GIF sent through Twitter? Does the intentional transmission of a harmful GIF constitute "physical contact" for the purposes of a battery claim under Texas law? Is "purposeful infliction of bodily harm" a recognized tort under Texas law?

Holding

The Court denied Defendant's motion to dismiss Count I (battery), finding that Plaintiff sufficiently pled a claim for battery under Texas law. The Court granted in part Defendant's motion to dismiss Count IV ("purposeful infliction of bodily harm/prima facie tort under Texas law"), dismissing it without prejudice because it is not yet a recognized tort in Texas.

Rule

Under Texas law, a civil battery is defined as intentionally, knowingly, or recklessly causing bodily injury, or intentionally or knowingly causing physical contact when the person knows or should reasonably believe the other will regard such contact as offensive or provocative. Physical contact for battery does not require direct contact with the plaintiff's physical body, nor does it need to be direct physical contact; it can be indirect, such as causing another to come into contact with a harmful physical element. The court reasoned that light waves emitted from a GIF, which strike the retina and cause an electrical signal leading to a seizure, constitute physical contact for battery purposes, as light is a physical force. The novelty of the mechanism by which harm is achieved does not make actions any less a tort, and federal courts should not interfere with developing areas of state tort law.

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