Is there a tort called “being a pig”?

Some questions for a fantasy law-school final.

With law school final-exam season approaching, the law faculty among my readers are no doubt searching for bizarrely interesting fact-patterns about which to ask questions. I have a nominee.

Kevin Drum is right: the man who found a fingertip in his frozen custard and refused to give it back to have it re-attached to the worker who had suffered the misfortune of having it snipped off by the frozen-custard machine is a waste of space on a crowded planet.

Alas, and predictably, Kevin’s wish that Mr. Stowers, the pond-scum in question, be unable to find a lawyer to take his case has been disappointed; Stowers has already found another cheap imitation of a human being named Lee Andrews to act as his mouthpiece. Andrews says the experience (of finding the finger, not of causing another person to be permanently disabled) has been “very upsetting” to Stowers. Boo frigging hoo.

Moreover, it turns out that another worker in the same store lost a finger in the same machine a year ago; the state Department of Labor found that the injury resulted from the worker’s negligence and cleared the store owner of wrongdoing.

Here are the questions that occur to me:

1. Does the worker whose fingertip Stowers refused to return have a cause of action against Stowers? If so, on what theory? What defenses could Stowers offer?

2. Can Stowers be charged with a crime? If so, what crime? What defenses could Stowers offer?

3. Could a police officer lawfully have ordered Stowers to return the fingertip? If so, on what theory?

4. If an officer had ordered Stowers to do so, and he refused, could he have been lawfully arrested for disorderly conduct or failur to obey an officer? Would the lawfulness of the arrest depend on whether the order itself was in fact lawful, or only on the officer’s good-faith belief in its lawfulness?

5. If Stowers had been arrested and taken to a lockup, and the fingertip taken as part of the booking procedure, would the officer in charge of the lockup had the legal authority to give the fingertip to the accident victim, or to the hospital, for reattachment?

6. Under the situation in question 5, if the desk officer in charge of the lockup did return the fingertip, would Stowers have a cause of action against the desk officer? On what theory? Would the desk officer have any immunity from lawsuit?

7. Given the evidence that the frozen-custard machine in question seems to eat fingers, can the worker who was injured last year now sue either the store owner or the manufacturer of the machine? How about the worker who lost his fingertip this time, after the store owner was on notice that such an injury was possible? Does the finding of the Labor Department provide any protection to the store owner? To the manufacturer?

And now a non-legal question, directed especially to all my friends who worry about excessive use of police powers: Don’t you wish some cop had either bullied Stowers into doing the right thing by threatening him with arrest or figured out a pretext for an arrest so the fingertip could be taken from him and reattached?

Footnote: Why was the frozen custard with the fingertip in it served to the customer? Is it possible to amputate a fingertip and not be aware of it?


A Pennsylvania police officer thinks there would have been grounds for arrest under Pennsylvania law:

§ 3924. Theft of property lost, mislaid, or delivered by mistake.

A person who comes into control of property of another that he knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient is guilty of theft if, with intent to deprive the owner thereof, he fails to take reasonable measures to restore the property to a person entitled to have it.

Second update A reader who has seen newspaper accounts I haven’t seen reports that the customer was in the drive-through lane and drove away with the fingertip.

Third update Jonathan Zasloff writes:

Generally speaking, the employee would not be able to sue his employer in tort. Instead, this would be a worker’s compensation claim.

The Labor Department finding of no wrongdoing on the part of the employer would not be relevant to a worker’s comp claim, since worker’s comp is a “strict liability” system–all the worker has to show is that the injury was incurred in the scope of employment. Many worker’s comp cases turn on whether the worker was in the scope of employment, or whether he was, in fact, on a “frolic and detour” (one of the great, colorful phrases of the common law now applied to worker’s comp cases).

Worker’s comp damages are much more limited than tort damages. That’s the tradeoff; easier to recover, lower damages. With all the problems of worker’s comp, overall it’s a better system than tort: administrative costs for worker’s comp are a (much-criticized) 21%. For tort, it’s 53%. In other words, for every dollar that goes to compensate someone through the tort system, there’s another that goes to lawyers, experts, court costs, etc.

Social Security Disability Insurance has administrative costs of closer to 8%. See George L. Priest, The Current Insurance Crisis and Modern Tort Law, 96 Yale L.J. 1521, 1560 (1987). Of course SSDI is a government program and thus must be less efficient, so there’s no point paying attention to facts. Right?

The worker could probably make a defective products claim against the manufacturer; the key test here would be whether the machine model had “”excessive preventable danger,” i.e. is there another model out there that was safer and had the same utility.

The interesting legal question is: what if the store owner makes an alteration to the product, that makes the product defective and dangerous, and that the manufacturer could foresee the owner would make? This happens a lot with machine tools, where store owners alter the tool to make it more efficient but less safe. The worker can’t sue the store owner in tort but can only make a worker’s comp claim. So then he tries to sue the manufacturer.

Many states say that the manufacturer is immune–the product is defective only if it left the manufacturer’s possession as dangerous. Others say that if there is foreseeable misuse that the manufacturer could have prevented, then the product is defective. And still others say that the product isn’t defective in terms of its design, but that the manufacturer has a duty to warn. One can hardly imagine a worker refusing to use a product based upon the warning–especially given the current state of labor relations–but it is the law in important jurisdictions. See, e.g., Liriano v. Hobart Corp., 700 N.E.2d 303 (N.Y. 1998), where an immigrant worker got his hands chewed up in a meat grinder that had been altered by his employer to operate without the safety hasp. The New York court said that the product itself wasn’t defective, but that the manufacturer should have warned the employee. Who then presumably should have demanded of his employer to fix the meat grinder. Go figure.

Fourth update: Another reader suggests that the fingertip, as long as it was potentially capable of being reattached, was legally still part of the victim’s body, and that Stowers could have been arrested for battery for holding on to it. On the other hand, he points out, body parts are never “property” at law, so any charge for not returning lost property couldn’t be sustained.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact: