2 Class 2 2 Class 2

Intentional Torts and Defenses: Autonomy and Dignity

            Perhaps the most recognizable torts, assault and battery, force us to ask surprisingly complex questions. Battery centers on claims of “wrongful bodily contact” whereas assault involves the fear produced by the threat of such contact. But what makes assault or battery harmful? As we’ll see, tort law focuses less on the extent of physical injury (although that certainly matters) and more on an individual’s sense of bodily integrity and dignity. And yet almost daily, we experience physical contact that the law treats as acceptable—on the subway, in touch football games, and even in the office. How does tort law determine when physical touch crosses the line? Does it matter if a plaintiff is especially sensitive? What if a defendant knows in advance about those sensitivities? How much are our ideas of wrongful touch informed by culture and history—or even race, gender, gender identity, and sexual orientation?

            We’ll also consider how the law of assault and battery has figured centrally in contemporary controversies about domestic violence and sexual harassment. As we’ll see, the body of judge-made law that defines these torts has created both roadblocks and opportunities in these areas.

2.1 Battery and Cultural Norms 2.1 Battery and Cultural Norms

2.1.1 Wishnatsky v. Huey 2.1.1 Wishnatsky v. Huey

            We all have different levels of tolerance when it comes to physical touch. Some of these may be innate; some may stem from personal experience or from our individual worldview. How much should the law account for these differences? Consider these questions in reading the next case.

584 N.W.2d 859 (1998)
1998 ND App 8

Martin WISHNATSKY, Plaintiff and Appellant,
v.
David W. HUEY, Defendant and Appellee.

Civil No. 980067CA.

Court of Appeals of North Dakota.

September 15, 1998. 

Martin Wishnatsky, Fargo, pro se.

Andrew Moraghan, Assistant Attorney General, Attorney General's Office, Bismarck, for defendant and appellee.

[860] PER CURIAM.

Martin Wishnatsky appealed a summary judgment dismissing his battery action against David W. Huey, and an order denying his motion for an altered judgment. We conclude, as a matter of law, that no battery occurred, and we affirm the judgment and the order.

On January 10, 1996, Huey, an assistant attorney general, was engaged in a conversation with attorney Peter B. Crary in Crary's office. Without knocking or announcing his entry, Wishnatsky, who performs paralegal work for Crary, attempted to enter the office. Huey pushed the door closed, thereby pushing Wishnatsky back into the hall. Wishnatsky reentered the office and Huey left.

Wishnatsky brought an action against Huey, seeking damages for battery.[1] Huey moved for summary judgment of dismissal. The trial court granted Huey's motion and a judgment of dismissal was entered. Wishnatsky moved to alter the judgment. The trial court denied Wishnatsky's motion.

Wishnatsky appealed, contending the evidence he submitted in response to Huey's motion for summary judgment satisfies the elements of a battery claim and the trial court erred in granting Huey's motion. Wishnatsky also contends Huey is not entitled to prosecutorial or statutory immunity.

Summary judgment is a procedural device for the prompt and expeditious disposition of a controversy without trial if either party is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving factual disputes would not alter the result. Perry Center, Inc. v. Heitkamp, 1998 ND 78, ¶ 12, 576 N.W.2d 505. "In considering a motion for summary judgment, a court must view the evidence in the light most favorable to the party opposing the motion, who must be given the benefit of all favorable inferences which reasonably can be drawn from the evidence." Mougey Farms v. Kaspari, 1998 ND 118, ¶ 12, 579 N.W.2d 583. "Disputes of fact become questions of law if reasonable persons can draw only one conclusion from the evidence." Id. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the non-moving party to determine if the trial court properly granted summary judgment as a matter of law. Tuhy v. Schlabsz, 1998 ND 31, ¶ 5, 574 N.W.2d 823. On a defendant's motion for summary judgment, the question for the court is "whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

"In its original conception [battery] meant the infliction of physical injury." VIII Sir William Holdsworth, A History of English Law 422 (2d Impression 1973). By the Eighteenth Century, the requirement of an actual physical injury had been eliminated:

At Nisi Prius, upon evidence in trespass for assault and battery, Holt, C.J. declared,

1. That the least touching of another in anger is a battery. 2. If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it is no battery. 3. If any of them use violence against the other, to force his way in a rude inordinate manner, it is a battery; or any struggle about the passage, to that degree as may do hurt, is a battery. Vid.Bro.Tresp. 236. 7 E. 4, 26. 22 Ass. 60. 3 H. 4, 9.

Cole v. Turner, Pasch. 3 Ann., 6 Mod. 149, 90 Eng.Rep. 958 (1704). Blackstone explained:

The least touching of another's person willfully, or in anger, is a battery; for the law cannot draw the line between different degrees [861] of violence, and therefore totally prohibits the first and lowest stage of it: every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner.

3 William Blackstone, Commentaries *120. On the other hand, "in a crowded world, a certain amount of personal contact is inevitable, and must be accepted." W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 9, at 42 (5th ed.1984).

The American Law Institute has balanced the interest in unwanted contacts and the inevitable contacts in a crowded world in Restatement (Second) of Torts §§ 18, 19 (1965):

18. Battery: Offensive Contact

(1) An actor is subject to liability to another for battery if

(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and

(b) an offensive contact with the person of the other directly or indirectly results.

(2) An act which is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for a mere offensive contact with the other's person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

....

19. What Constitutes Offensive Contact

A bodily contact is offensive if it offends a reasonable sense of personal dignity.

Comment c to § 18 notes that the contact need not be "directly caused by some act of the actor" and also notes that "the essence of the plaintiff's grievance consists in the offense to the dignity involved in the unpermitted and intentional invasion of the inviolability of his person and not in any physical harm done to his body." Comment a to § 19 explains what kind of conduct offends a reasonable sense of personal dignity:

In order that a contact be offensive to a reasonable sense of personal dignity, it must be one which would offend the ordinary person and as such one not unduly sensitive as to his personal dignity. It must, therefore, be a contact which is unwarranted by the social usages prevalent at the time and place at which it is inflicted.

Huey moved for summary judgment of dismissal, because, among other things, "as a matter of law, a battery did not occur on January 10, 1996." Huey supported the motion with his affidavit stating in part:

8. That Attorney Crary and I had settled into a serious discussion about the case and had established a good rapport when the door to his office suddenly swung open without a knock. An unidentified individual carrying some papers then strode in unannounced. I had not been told that anyone would be entering Attorney Crary's office during the private meeting.... I subsequently learned that the individual's name is Martin Wishnatsky.

Wishnatsky responded to Huey's motion for summary judgment with an affidavit of Crary and with his own affidavit stating in part:

1. I am a born-again Christian and cultivate holiness in my life. [A]s a result I am very sensitive to evil spirits and am greatly disturbed by the demonic. However, in Christ there is victory.

2. On January 9, 1996, Mr. David Huey of the North Dakota Attorney General's office, visited the ministry where I was working at 16 Broadway in Fargo, North Dakota with an ex parte court order.

3. The following morning I entered the office of Peter Crary, an attorney for whom I do paralegal work, to give him certain papers that had been requested. Mr. Crary was speaking with Mr. David Huey at the time. As I began to enter the office Mr Huey threw his body weight against the door and forced me out into the hall. I had not said a word to him. At the same time, he snarled: "You get out of here." This was very shocking and frightening to me. In all the time I have been working as an aide to Mr. Crary, I have never been physically assaulted or spoken to in a harsh and brutal manner. My blood pressure began to rise, my heart beat accelerated and I felt waves of fear in the pit of my stomach. My hands began to shake and my body to tremble. Composing myself, I reentered the office, whereupon [862] Mr. Huey began a half-demented tirade against me and stormed out into the hall. I looked at Mr. Crary in wonder.

We certainly agree with the Supreme Court's determination that when Wishnatsky attempted to enter the room in which Huey was conversing with Crary, "Huey apparently reacted in a rude and abrupt manner in attempting to exclude Wishnatsky from that conversation." Wishnatsky v. Huey, 1997 ND 35, ¶ 15, 560 N.W.2d 878. As a matter of law, however, Huey's "rude and abrupt" conduct did not rise to the level of battery.

The evidence presented to the trial court demonstrates Wishnatsky is "unduly sensitive as to his personal dignity." Restatement (Second) of Torts § 19 cmt. a (1965). Without knocking or otherwise announcing his intentions, Wishnatsky opened the door to the office in which Huey and Crary were having a private conversation and attempted to enter. Huey closed the door opened by Wishnatsky, thereby stopping Wishnatsky's forward progress and pushing him back into the hall. The bodily contact was momentary, indirect, and incidental. Viewing the evidence in the light most favorable to Wishnatsky, and giving him the benefit of all favorable inferences which can reasonably be drawn from the evidence, we conclude Huey's conduct in response to Wishnatsky's intrusion into his private conversation with Crary, while "rude and abrupt," would not "be offensive to a reasonable sense of personal dignity." In short, an "ordinary person ... not unduly sensitive as to his personal dignity" intruding upon a private conversation in Wishnatsky's manner would not have been offended by Huey's response to the intrusion. We conclude that Huey's conduct did not constitute an offensive-contact-battery, as a matter of law, and the trial court did not err in granting Huey's motion for summary judgment dismissing Wishnatsky's action.

Because we have concluded there was no battery as a matter of law, we need not address the immunity issues Wishnatsky has raised. We need not consider questions, the answers to which are unnecessary to the determination of the case. See, e.g., Kaler v. Kraemer, 1998 ND 56, ¶ 10, 574 N.W.2d 588; Hospital Servs., Inc. v. Brooks, 229 N.W.2d 69, 71 (N.D.1975).

Affirmed.

HOBERG, C.J., WILLIAM F. HODNY, Surrogate Judge, and DEBBIE G. KLEVEN, District Judge, concur.

[1] Wishnatsky also sought a disorderly conduct restraining order under N.D.C.C. Ch. 12.1-31.2 against Huey, based on the January 10, 1996, incident, and another on January 25, 1996. In affirming a judgment dismissing Wishnatsky's petition, our Supreme Court concluded "Huey's conduct did not rise to the level of intrusive behavior which would warrant a reasonable person to conclude Huey committed the offense of disorderly conduct." Wishnatsky v. Huey, 1997 ND 35, ¶ 15, 560 N.W.2d 878.

2.1.2 Werth v. Taylor 2.1.2 Werth v. Taylor

            The next case pits religious freedom against norms of implied consent. The plaintiff, a Jehovah’s Witness, signed a form refusing a blood transfusion but later ran into life-threatening complications. To save his patient, a physician did transfuse blood. Should this be considered a battery?

475 N.W.2d 426

 

Cindy K. WERTH and Donald E. Werth, Plaintiffs-Appellants,

v.

Michael V. TAYLOR, M.D., Defendant-Appellee,

and

County of Alpena, d/b/a Alpena General Hospital, Alcona Citizens for Health, Inc., d/b/a Alcona Health Center, Cheryl L. Parsons, M.D., C.L. McDougall, M.D., and Mark J. Outman, C.R.N.A., Defendants.

Docket No. 123785.

190 Mich.App. 141, 475 N.W.2d 426

Court of Appeals of Michigan.

Submitted Jan. 16, 1991, at Lansing.

Decided July 8, 1991, at 9:05 a.m.

Released for Publication Oct. 28, 1991.


[475 N.W.2d 427] [190 MICHAPP 141] Sommers, Schwartz, Silver & Schwartz, P.C. by Stanley S. Schwartz and Richard L. Groffsky, Southfield, for plaintiffs-appellants.

Stroup, Johnson & Tresidder, P.C. by Charles W. Johnson, Petoskey, for Michael V. Taylor, M.D.

Before NEFF, P.J., and SHEPHERD and McDONALD, JJ.

NEFF, Presiding Judge.

Plaintiffs, Cindy K. Werth and donald [190 MICHAPP 142] E. Werth, appeal as of right from an order of the circuit court granting summary disposition pursuant to MCR 2.116(C)(10) in favor of defendant, Michael V. Taylor, M.D. We affirm.

I

Plaintiffs filed a civil battery claim against defendant Taylor based on his authorization of a blood transfusion for Cindy Werth despite plaintiffs' refusals. Plaintiffs also filed a medical malpractice claim against Taylor and other defendants. The medical malpractice claim is not the subject of this appeal.

The facts are not in dispute. Cindy and her husband Donald are Jehovah's Witnesses. It is unquestioned that they are both devoted adherents to the tenets of their chosen faith. According to Cindy Werth's deposition testimony, one of the most deeply held of these tenets is the belief that it is a sin to receive blood transfusions.

In August 1985, Cindy, the mother of two children, became pregnant with twins. About two months before the expected date of delivery, Cindy went to Alpena General Hospital to preregister. She filled out several forms, including a "Refusal to Permit Blood Transfusion" form. Cindy went into labor on May 8, 1986, and entered Alpena General Hospital on that date. While she was being admitted, Donald signed another "Refusal to Permit Blood Transfusion" form.

Cindy gave birth to her twins on the evening of May 8, 1986. Following delivery, Cindy was found to be bleeding from her uterus. Around 11:30 p.m., Dr. Cheryl Parsons was called. She performed a pelvic examination and discovered a great deal of clotting and a fair amount of bleeding. Dr. Parsons [190 MICHAPP 143] then discussed performing a dilation of the cervix and curettage of the uterine lining (D & C). As a result, Dr. Parsons began discussing with plaintiffs their refusals of blood transfusions.

Following this discussion, Cindy was taken to surgery. In the early hours of May 9, 1986, she was placed under general anesthesia, and Dr. Parsons proceeded to perform a D & C. The bleeding, however, continued. Defendant Taylor, an anesthesiologist, was then called to the hospital to examine Cindy. Cindy's blood pressure had risen significantly. At approximately 1:30 a.m., defendant Taylor observed mottling and cooling of the skin peripherally, premature ventricular activity, oozing of crystalloid material from her eyes, and a fairly rapid and significant fall in blood pressure. These observations prompted defendant Taylor to determine that a blood transfusion was medically necessary to preserve Cindy's life. He ordered the transfusion of packed red blood cells, but before the transfusion was given, Dr. Parsons informed him that Cindy was a Jehovah's Witness. Dr. Parsons testified that defendant responded by saying something like "that may be, but she needs the blood." A blood transfusion was then given.

Plaintiffs thereafter filed their medical malpractice action, alleging negligence by various defendants, including Taylor, and alleging battery against defendant Taylor.

Defendant Taylor filed a motion for summary disposition pursuant to MCR 2.116(C)(10), arguing that because Cindy's refusal was not conscious, competent, contemporaneous, and fully informed, defendant did not commit a battery in deciding to infuse blood. The trial court granted this motion and entered an order dismissing plaintiffs' claim against defendant Taylor.

[190 MICHAPP 144] II

Plaintiffs contend that the trial court erred in granting summary disposition where their refusal of a blood transfusion [475 N.W.2d 428] was made deliberately and voluntarily. They also contend that defendant's decision to perform that procedure with knowledge of this express refusal resulted in a battery, as well as a violation of the hospital's promise to honor plaintiffs' religious convictions, and that the potentially life-threatening situation did not alter plaintiffs' conscious, deliberate, and unequivocal refusal. Plaintiffs also claim that the court erred in holding that society's interest in preventing minors from becoming wards of the court could override plaintiffs' religious beliefs.

Defendant Taylor, on the other hand, contends that the trial court did not err in granting summary disposition, because plaintiffs did not unequivocally refuse the blood transfusion. He claims that, in the face of a life-threatening emergency, without a fully conscious and contemporaneous refusal, his decision to transfuse blood was appropriate and the court did not err in finding an implicit consent to the procedure authorized by him. Defendant Taylor also contends that the state's interest in preserving life authorized him to override plaintiffs' right to refuse blood transfusions on religious grounds. He claims that, while a patient may knowingly decline treatment, the patient has no right to demand inadequate treatment, and the courts will not require that such be committed.

III

Summary disposition based on MCR 2.116(C)(10) may be granted where, except for the amount of damages, there is no genuine issue regarding any [190 MICHAPP 145] material fact and the moving party is entitled to judgment as a matter of law.

A motion for summary disposition under this subrule tests whether there is factual support for a claim. Dumas v. Auto Club Ins. Ass'n, 168 Mich.App. 619, 626, 425 N.W.2d 480 (1988). The party opposing the motion has the burden of showing that a genuine issue of disputed fact exists. Pantely v. Garris, Garris & Garris, P.C., 180 Mich.App. 768, 773, 447 N.W.2d 864 (1989). Giving the benefit of any reasonable doubt to the nonmovant, the court must determine whether a record might be developed which will leave open an issue upon which reasonable minds could differ. Dumas, supra. All inferences are to be drawn in favor of the nonmovant. Dagen v. Hastings Mutual Ins. Co., 166 Mich.App. 225, 229, 420 N.W.2d 111 (1987). Before judgment may be granted, the court must be satisfied that it is impossible for the claim asserted to be supported by evidence at trial. Peterfish v. Frantz, 168 Mich.App. 43, 48-49, 424 N.W.2d 25 (1988).

A

A competent adult patient has the right to decline any and all forms of medical intervention, including lifesaving or life-prolonging treatment. Cruzan v. Director, Missouri Dep't of Health, --- U.S. ----, 110 S.Ct. 2841, 111 L.Ed.2d 224 (1990); In re Quinlan, 70 N.J. 10, 355 A.2d 647 (1976). See anno: Patient's right to refuse treatment allegedly necessary to sustain life, 93 A.L.R.3d 67. Indeed, the whole concept of informed consent to treatment leads to an inference of its converse--informed refusal of treatment. Put another way, a competent adult may choose to give or withhold consent to medical treatment.

[190 MICHAPP 146] However, the law implies the consent of an unconscious patient to medical procedures needed to preserve the patient's life. Delahunt v. Finton, 244 Mich. 226, 229, 221 N.W. 168 (1928). See alsoYoung v. Oakland Gen. Hosp., 175 Mich.App. 132, 139, 437 N.W.2d 321 (1989). If a physician treats or operates on a patient without consent, he has committed an assault and battery and may be required to respond in damages. Id.; Banks v. Wittenberg, 82 Mich.App. 274, 279, 266 N.W.2d 788 (1978). Consent may be expressed or implied. Young, supra; Banks, supra, p. 280, 266 N.W.2d 788. It has been held that consent is implied where an emergency procedure is required and there is no opportunity to obtain actual consent or where the patient seeks treatment or otherwise manifests a willingness to submit to a particular treatment. Young, supra; Banks, supra.

[475 N.W.2d 429] B

Here, the trial court determined that Cindy's refusals were made when she was contemplating merely routine elective surgery and not when life-threatening circumstances, were present and concluded that it could not be said that she made the decision to refuse a blood transfusion while in a competent state and while fully aware that death would result from such refusal. The record reflects the unexpected development of a medical emergency requiring blood transfusion to prevent death or serious compromise of the patient's well-being.

The decision of the trial court is supported by one reached by the Supreme Court of Pennsylvania in In re Estate of Dorone, 517 Pa. 3, 534 A.2d 452 (1987). In Dorone, the patient was a twenty-two-year-old Jehovah's Witness who required a blood transfusion during a cranial operation to [190 MICHAPP 147] relieve an acute subdural hematoma. Without the operation or transfusion, death was imminent. The patient was unconscious, and his parents refused consent to the blood transfusion. The court overruled the parents' refusal, stating:

Turning to the ultimate decisions the judge rendered, we feel that they were absolutely required under the facts he had before him. Those facts established that medical intervention, which necessarily included blood transfusions, could preserve Mr. Dorone's life. When evidence of this nature is measured against third party speculation as to what an unconscious patient would want there can be no doubt that medical intervention is required. Indeed, in a situation like the present, where there is an emergency calling for an immediate decision, nothing less than a fully conscious contemporaneous decision by the patient will be sufficient to override evidence of medical necessity. [Id., p. 9, 534 A.2d 452.]

Here, both plaintiffs signed "Refusal to Permit Blood Transfusion" forms. Following Cindy's delivery of twins, Dr. Parsons discussed these refusals with both plaintiffs. Cindy recalled their conversation as follows:

She--okay. We told her--she said, "I understand that you're one of Jehovah's Witnesses and that you won't take blood," and Don and I both said, "That's correct." And she said, "You mean to tell me if your wife's dying on the table that you're not going to give her blood?" And we said--Don said, "That's--well, I don't want her to have blood, but I don't want her to die. We want the alternative treatment."

* * * * * *

She said there would be no problem. It was a routine D & C, there was no problem with the blood.

* * * * * *

[190 MICHAPP 148] The idea of a blood transfusion, she made it sound that it wouldn't even be a problem. Blood wouldn't come into the picture. That's how I understood it.

Donald also testified regarding the conversation as follows:

At the time of the consent form, she gave it to my wife and had her look it over and read it, and she said--she acknowledged us as being one of Jehovah's Witnesses, and then she said, "Would you accept blood?" And we replied, "No." And then she made the remark, "Even if she was to die, you'd let her die?"

And at that point, I questioned, I said, "Well, how serious of a, you know, condition was she?" And the reason why we asked that is because, like I say, in different situations like there are Witnesses who have gone to hospitals, you know, if there was some type of real emergency, a lot of times they're shipped out or flown out. Different ones have gone to Ann Arbor and other places.

So at that time, I was just kind of questioning, well, how serious was it, you know. First of all, you say it's a routine D & C; then you mention that if she was to die, and so that's why I questioned it, and then she reassured us that there was no problem, nothing to it.

The following colloquy then occurred between defense counsel and Donald:

[475 N.W.2d 430] Q. So you never answered the question.

A. Oh, as far as the idea of dying?

Q. Yes.

A. I said no. The answer was no.

Q. Even if she was to die, you said "No blood."

A. Right.

Q. What did your wife say to that?

[190 MICHAPP 149] A. Well, she was right there and that was her feeling also.

Q. But you didn't have the feeling that that was part of the problem or a possibility? It was kind of an academic discussion, that she might die?

A. Well, she said it in a joking manner. It wasn't done as a serious matter. Being with a joking manner, that's why I asked her how serious it was and then she just--"Oh, there's no problem."

Q. Okay. So you weren't really biting the bullet because it didn't seem to be part of the problem that she was going to die or there was a risk of her dying?

A. At that point, no.

Dr. Parsons testified to the conversation as follows:

I recall discussing with her and her husband the fact that they were Jehovah's Witnesses and that she indicated that this was true. And I said, "Is it true that you do not want any blood transfusions?" She said, "No." He looked at me and said, "Do you think it's that bad?" And I said, "Not right now." And I didn't get any further answer from him in terms of whether he felt that if it became that bad he might change his mind. And I left it at that.

She also described Donald's response as "wishy-washy."

Following this discussion, Cindy underwent surgery. She was placed under general anesthesia, and Dr. Parsons performed a D & C. Cindy did not regain consciousness again until after the operation and transfusion of blood were performed. Defendant Taylor testified that he was aware, before deciding to infuse blood, that Cindy was a Jehovah's Witness. No attempt was made to bring Cindy to consciousness in order to obtain her approval, and defendant Taylor testified that this [190 MICHAPP 150] option was "foolhardy." No attempt was made to discuss his decision with Donald because defendant saw nothing to be gained from it. He did not believe Donald could give or deny permission for a blood transfusion.

C

We agree with the principle in Dorone that it is the patient's fully informed, contemporaneous decision which alone is sufficient to override evidence of medical necessity. The fact that defendant did not obtain the consent of Cindy's husband does not preclude the granting of summary disposition. It is undisputed that Cindy was unconscious when the critical decision regarding the blood transfusion to avoid her death was being made. Her prior refusals had not been made when her life was hanging in the balance or when it appeared that death might be a possibility if a transfusion were not given. Clearly, her refusals were, therefore, not contemporaneous or informed. Thus, a record could not be developed regarding Cindy's refusal which would leave open an issue upon which reasonable minds could differ.

Our holding in this case is narrow. Without contemporaneous refusal of treatment by a fully informed, competent adult patient, no action lies for battery and summary disposition was proper.

D

Because of our resolution of this case, we need not address the issue whether the trial court erred in holding that the state had a valid interest in preventing Cindy's death.

Affirmed.

2.1.3 Balas v. Huntington Ingalls Industries, Inc. 2.1.3 Balas v. Huntington Ingalls Industries, Inc.

Karen B. BALAS, Plaintiff-Appellant, v. HUNTINGTON INGALLS INDUSTRIES, INC., Successor to Northrop Grumman Corporation, Defendant-Appellee.

No. 12-1201.

United States Court of Appeals, Fourth Circuit.

Argued: Jan. 31, 2013.

Decided: March 15, 2013.

*404ARGUED: Steven Scott Biss, Char-lottesville, Virginia, for Appellant. Scott William Kezman, Kaufman & Cañóles, PC, Norfolk, Virginia, for Appellee. ON BRIEF: Mark E. Warmbier, Kaufman & Cañóles, PC, Norfolk, Virginia, for Appel-lee.

Before DUNCAN, WYNN, and FLOYD, Circuit Judges.

Affirmed by published opinion. Judge DUNCAN wrote the opinion, in which Judge WYNN and Judge FLOYD joined.

OPINION

DUNCAN, Circuit Judge:

Karen B. Balas appeals the district court’s denial of relief on her claims of discrimination, retaliation, and hostile work environment, brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e (“Title VII”), as well as wrongful discharge, assault, and battery, brought under Virginia law, against Huntington Ingalls Industries, Inc. (“Huntington Ingalls”), the successor to her former employer, Northrop Grumman Corporation.1 On appeal, Balas argues that the district court erred in construing the scope of her charge of discrimination, denying her leave to amend her complaint, and granting summary judgment to Huntington Ingalls on her claims of retaliatory discharge, assault, and battery. For the reasons ably articulated by the district court, we affirm.

I.

A.

According to Balas, Huntington Ingalls “subject[ed] her to an ongoing sexually hostile work environment that included unwanted requests from her supervisor for sex, numerous sexual comments, sexually explicit posters knowingly being allowed in [her] workplace, employees massaging one another, sexually offensive pictures, and unwanted touching....” J.A. 7. Her complaint centers on the actions of her supervisor, Brad Price, who, she alleges, “frequently and repeatedly commented to [her] about how much he liked her attire and physical appearance”; “referred to [her] as a ‘good woman’ “frequently and repeatedly entered [her] small work space and her personal space”; and “frequently talked about his sex life to [her].” J.A. 7-8. According to Balas’s complaint, “[i]n or around April 2009, Mr. Price solicited sex from [her].” J.A. 8.

In August 2009, Balas wore a pair of ripped jeans to work. Price, apparently in response to a complaint, sent her home to change into more appropriate work attire. Balas alleges that men dressed in similarly ripped jeans were not asked to change. She alleges that upon returning to work, she complained to Price that his request for her to change clothes was discriminatory.

In January 2010, Price hugged Balas. Balas alleges that Price “trapped [her] in her work space and willfully, wantonly and forcibly put his arms around [her,] hugging her against her will.” J.A. 11-12. It is undisputed, however, that this hug occurred after Balas had given Price a gift of Christmas cookies for his family, and that immediately prior to the hug, Price had thanked her for the cookies and told her, “You never cease to amaze me.” J.A. 145.

*405Balas alleges that she repeatedly complained of gender discrimination and a hostile work environment. She asserts that because of these complaints, she was repeatedly denied promotions.

On February 17, 2010, Balas was fired for falsifying her February 11, 2010 time records. Another female employee was fired the same day for the same infraction. It is undisputed that Balas did not properly account for taking off over an hour of time. Price alerted Cindi Wolfe, his human resources representative, and Roger Lowman, the department manager, of the time-keeping infraction. The three of them undertook an investigation of the incident. Lowman, who was never made aware of Balas’s alleged complaint to Price about the jeans incident, was solely responsible for the decision to fire Balas.

B.

On July 19, 2010, Balas submitted an intake questionnaire to the Equal Employment Opportunity Commission (“EEOC”). She attached to her questionnaire a letter laying out her complaints in greater detail, including being denied opportunities for promotions, a “personal vendetta” Wolfe held against her, and the circumstances of the jeans incident. J.A. 182-84. The EEOC prepared a charge on her behalf, alleging sex discrimination and retaliatory termination, which Balas signed on July 26, 2010. The only specific occurrences referenced in the charge were her termination and the jeans incident. The EEOC charge listed February 17, 2010 — the date of her termination — -as the “earliest” and “latest” date of discrimination. The “continuing action” box on the charge was left blank.

On October 2, 2010, Balas sent a second letter to the EEOC providing further details related to Price and the alleged sexual harassment. Later that month, the EEOC prepared an amended charge, which included the allegation that Price inappropriately hugged her in January 2010. The hug was the only additional fact alleged in the amended charge. The earliest date of discrimination section was left blank, but, again, the “continuing action” box was not checked.

The EEOC dismissed Balas’s charge and issued her right to sue letter on February 25, 2011. She subsequently filed suit in the district court pro se. In her complaint, Balas alleged Title VII claims for failure to promote, retaliatory termination, and hostile work environment based on sexual harassment. She also alleged state law claims for wrongful discharge, assault, battery, and intentional infliction of emotional distress.

Huntington Ingalls filed a motion for judgment on the pleadings, which the district court granted in part. The court determined that it lacked jurisdiction to consider allegations in Balas’s Title VII claim that were not included in her EEOC charge. In determining the scope of that charge, the court declined to consider Ba-las’s intake questionnaire or letters to the EEOC. The court concluded that Balas only properly alleged discriminatory or retaliatory termination and harassment by her supervisor. It went on, however, to dismiss her harassment claim.

In her complaint, Balas alleged that Huntington Ingalls wrongfully discharged her by terminating her in order to silence her opposition to discrimination and harassment in the workplace, in violation of what she asserted is the public policy articulated in the Virginia Human Rights Act (“VHRA”), Va.Code § 2.1-714 et seq. Balas sought to amend her complaint to include other sources of public policy in support of her claim. The district court determined that Balas’s proposed amendments would be futile because the complaint, even if amended, *406would not sufficiently state a claim for wrongful discharge. The court thus denied Balas leave to amend her complaint and dismissed her wrongful discharge claim.

The court found that Balas had stated a claim of retaliatory termination under Title VII and denied Huntington Ingalls’s motion for judgment on the pleadings as to that claim. In considering the merits of Balas’s retaliatory termination claim on summary judgment, the court concluded that Balas sufficiently alleged that she had engaged in a protected activity in complaining to Price about discrimination and that Huntington Ingalls took an adverse employment action against her by firing her. It determined, however, that she failed to present more than merely color-able evidence of a causal link between the two events, and granted summary judgment to Huntington Ingalls.

The court also determined that Balas had stated claims for assault and battery. Upon considering the merits of those claims, however, it concluded that Price’s hug could not amount to either a battery or an assault, and granted summary judgment to Huntington Ingalls.

Balas now appeals the district court’s dismissal of the majority of her Title VII claims on the basis of lack of jurisdiction, its denial of leave to amend her complaint, and its grant of summary judgment to Huntington Ingalls on her retaliatory termination, assault, and battery claims.2

II.

Balas first argues that the district court erred by considering only her EEOC charge — and not the intake questionnaire and letters she sent to the EEOC — in evaluating her Title VII claims. She also argues that she should have been granted leave to amend her complaint to include additional sources of public policy upon which to base her wrongful discharge claim.

Balas further challenges the district court’s grant of summary judgment to Huntington Ingalls. With respect to her Title VII retaliatory discharge claim, she argues that a reasonable person could find a connection between her alleged complaints to Price regarding sexual harassment and discrimination and Lowman’s decision to fire her. She also argues that she presented sufficient evidence from which a jury could find that Price committed the torts of assault and battery.

We address each of these arguments in turn.

A.

We first take up Balas’s argument that the district court erred in considering only her amended EEOC charge, and not the contents of her intake questionnaire or the two letters she submitted to the EEOC. The import of her argument derives from the fact that federal courts lack subject matter jurisdiction over Title VII claims for which a plaintiff has failed to exhaust administrative remedies. Jones v. Calvert Grp., Ltd., 551 F.3d 297, 300 (4th Cir.2009). We review questions of subject matter jurisdiction de novo. Dixon v. Coburg Dairy, Inc., 369 F.3d 811, 815 (4th Cir.2004) (en banc).

1.

An employee seeking redress for discrimination cannot file suit until she has exhausted the administrative process. See 42 U.S.C. § 2000e-5(b). The requirement of filing a charge with the EEOC against *407the party sued serves two principal purposes: “ ‘First, it notifies the charged party of the asserted violation. Secondly, it brings the charged party before the EEOC and permits effectuation of the [Civil Rights] Act’s primary goal, the securing of voluntary compliance with the law.’ ” Dickey v. Greene, 710 F.2d 1003, 1005 (4th Cir.1983), rev’d on other grounds, 729 F.2d 957 (4th Cir.1984) (quoting Bowe v. Colgate-Palmolive Co., 416 F.2d 711, 719 (7th Cir.1969)). The filing of an administrative charge, therefore, “is not simply a formality to be rushed through so that an individual can quickly file his subsequent lawsuit.” Chacko v. Patuxent Inst., 429 F.3d 505, 510 (4th Cir.2005). Rather, the charge itself serves a vital function in the process of remedying an unlawful employment practice.

An employee complaining of illegal discrimination must first contact the EEOC and present it with information supporting the allegations. 42 U.S.C. § 2000e-5(b); 29 C.F.R. § 1601.6. After receiving an employee’s intake questionnaire and any other information the employee has provided, the EEOC typically assists the employee with filing a charge. This assistance often includes drafting a charge — as it did here — and then asking the employee to sign it. See U.S. Equal Employment Opportunity Comm’n, The Charge Handling Process, available at http://www.eeoc.gov/ employees/process.cfm (last visited Feb. 15, 2013).

The EEOC sends a notice and copy of the charge to the employer. 42 U.S.C. § 2000e-5(b); 29 C.F.R. § 1601.14. This notice gives the employer the chance to voluntarily conduct its own investigation and attempt to resolve any discriminatory actions internally. See Chacko, 429 F.3d at 510. Concurrently, the EEOC investigates the charge.

The filing of a charge also “initiates agency-monitored settlement, the primary way that claims of discrimination are resolved.” Id. This procedure “reflects a congressional intent to use administrative conciliation as the primary means of handling claims, thereby encouraging quicker, less formal, and less expensive resolution of disputes.” Chris v. Tenet, 221 F.3d 648, 653 (4th Cir.2000). Prior to making any determination as to the merit of a charge, the EEOC may encourage and facilitate settlement between the parties. 29 C.F.R. § 1601.20.

If the EEOC finds “reasonable cause to believe that the charge is true, the Commission shall endeavor to eliminate any such alleged unlawful employment practice by informal methods of conference, conciliation, and persuasion.” 42 U.S.C. § 2000e-5(b); 29 C.F.R. § 1601.24. If the EEOC cannot reach a voluntary settlement with the employer, the agency may file a lawsuit or issue a Notice-of-Right-to-Sue to the employee. 29 C.F.R. §§ 1601.27-28. If the EEOC does not make a reasonable cause determination or the employee requests a right to sue, the agency may issue one, thus allowing the employee to file suit. 29 C.F.R. § 1601.28.

2.

In any subsequent lawsuit alleging unlawful employment practices under Title VII, a federal court may only consider those allegations included in the EEOC charge. See Evans v. Techs. Applications & Serv. Co., 80 F.3d 954, 962-63 (4th Cir.1996) (“The allegations contained in the administrative charge of discrimination generally operate to limit the scope of any subsequent judicial complaint.”). If the plaintiffs Title VII claims “ ‘exceed the scope of the EEOC charge and any charges that would naturally have arisen from an investigation thereof, they are procedurally barred.’ ” Chacko, 429 F.3d at *408506 (quoting Dennis v. Cnty. of Fairfax, 55 F.3d 151, 156 (4th Cir.1995)).

In determining what claims a plaintiff properly alleged before the EEOC, we may look only to the charge filed with that agency. We have noted that “it would be objectively illogical to view a private letter from a complaining party to the EEOC as constructively amending a formal charge, given that one of the purposes of requiring a party to file charges with the EEOC is to put the charged party on notice of the claims raised against it.” Sloop v. Mem’l Mission Hosp., Inc., 198 F.3d 147, 149 (4th Cir.1999). Sloop’s reasoning applies here, despite Balas’s contentions to the contrary. Balas argues that her letters, written before formal charges were filed, should be treated differently. We disagree. Given that Balas’s employer was never apprised of the contents of her letters (nor could she expect it to have been), the point at which they were written makes no difference for the goals of putting her employer on notice or encouraging conciliation.

While we recognize that EEOC charges often are not completed by lawyers and as such “ ‘must be construed with utmost liberality,’ ” Alvarado v. Bd. of Trs. of Montgomery Cmty. Coll., 848 F.2d 457, 460 (4th Cir.1988) (quoting Kaplan v. Int’l Alliance of Theatrical & Stage Emps., 525 F.2d 1354, 1359 (9th Cir.1975)), we are not at liberty to read into administrative charges allegations they do not contain. Instead, persons alleging discrimination have a different form of recourse if they determine that their initial charge does not read as they intended: they may, as Balas did, file an amended charge with the EEOC. See 29 C.F.R. § 1601.12(b).3 The intake questionnaire and the letters Balas submitted to the EEOC cannot be read as part of her formal discrimination charge without contravening the purposes of Title YU.

Balas also argues that she should not be penalized for the EEOC’s “negligence” in failing to send a copy of her intake questionnaire and letters to the EEOC to her employer.4 However, she points to no authority — and we find none— requiring the EEOC to undertake such an action or providing the EEOC with the discretion to do so.5 We decline to impose such an obligation upon the EEOC.

*409Any Title VII claims based on allegations included only in Balas’s intake questionnaire and letters are therefore outside the jurisdiction of the federal courts. The district court properly declined to consider those allegations not included in Balas’s EEOC charge.

B.

We next consider the district court’s denial of leave for Balas to amend her complaint. Leave to amend a pleading should be freely given “when justice so requires.” Fed.R.Civ.P. 15(a). “ ‘[L]eave to amend a pleading should be denied only when the amendment would be prejudicial to the opposing party, there has been bad faith on the part of the moving party, or the amendment would be futile.’ ” Edwards v. City of Goldsboro, 178 F.3d 231, 242 (4th Cir.1999) (quoting Johnson v. Oroweat Foods Co., 785 F.2d 503, 509 (4th Cir.1986)). The court determined that Balas’s proposed amendments would be futile. We review the denial of leave to amend a complaint for abuse of discretion. HCMF Corp. v. Allen, 238 F.3d 273, 276-77 (4th Cir.2001).

Virginia generally adheres to the common law doctrine of at-will employment. Miller v. SEVAMP, Inc., 234 Va. 462, 362 S.E.2d 915, 916-17 (1987). However, an at-will employee may bring a tor-tious wrongful discharge claim if her termination violates a state public policy as expressed in a statute. Bowman v. State Bank of Keysville, 229 Va. 534, 331 S.E.2d 797, 801 (1985). The Supreme Court of Virginia has consistently characterized this exception as “narrow.” City of Virginia Beach v. Harris, 259 Va. 220, 523 S.E.2d 239, 245 (2000). That court has recognized a “discharge ... based on [an] employee’s refusal to engage in a criminal act” as a basis for a wrongful discharge action. Rowan v. Tractor Supply Co., 263 Va. 209, 559 S.E.2d 709, 711 (2002).

Balas contends that she was discharged for refusing to engage in illegal activity and sought to amend her complaint to reference additional crimes she declined to commit. Specifically, she would have amended her complaint to allege that her discharge followed from her refusal to commit three crimes under Virginia law: (1) fornication, see Va.Code § 18.2-344; (2) lewd and lascivious behavior, see Va.Code § 18.2-345; and (3) sexual assault, see Va. Code § 18.2-61. We consider each in turn.

In support of her argument regarding the first of these policies, Balas cites Mitchem v. Counts, 259 Va. 179, 523 S.E.2d 246 (2000). There, the Supreme Court of Virginia determined that a plaintiff sufficiently stated a claim for wrongful discharge based on Virginia statutes proscribing fornication and lewd and lascivious behavior. However, as the district court correctly determined here, Mitchem’s application of Virginia Code § 18.2-344, prohibiting fornication, was abrogated by Martin v. Ziherl, 269 Va. 35, 607 S.E.2d 367 (2005), making Balas’s proposed amendment futile. In Martin, the Virginia Supreme Court struck down § 18.2-344 as unconstitutional, “because by subjecting certain private sexual conduct between two consenting adults to criminal penalties it infringes on the rights of adults to ‘engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.’ ” 607 S.E.2d at 371 (quoting Lawrence v. Texas, 539 U.S. 558, 564, 123 S.Ct. 2472, 156 L.Ed.2d 508 (2003)).

Amending her complaint to reference Virginia’s public policy against lewd and lascivious behavior would likewise be futile. Virginia Code § 18.2-345, which makes it illegal to “lewdly and lasciviously associate and cohabit” and to engage in “open and gross lewdness and *410lasciviousness,” does not apply to the facts Balas alleges in her complaint. Price never proposed cohabitation, and the hug Balas complains of did not even begin to approach the sort of “open and gross lewdness” § 18.2-345 prohibits. See Everett v. Commonwealth, 214 Va. 325, 200 S.E.2d 564 (1973).6

Balas’s final proposed amendment would be even farther from the mark. She would amend her complaint to allege that she was wrongfully discharged for not consenting to engage in the crime of sexual assault. Her proposed argument is untenable, as it is legally impossible to consent to sexual assault. Lack of consent is an element of the crime of sexual assault, so consensual sexual activity simply cannot constitute sexual assault. Va.Code § 18.2-61. Therefore, as a matter of law, “had [Balas] consented to having [Price] touch her, there would have been no crime.” Mitchem, 523 S.E.2d at 253. Any complaint of wrongful discharge on this basis would be unavailing.

Because the district court correctly determined that amending her complaint would be futile, it did not abuse its discretion in denying Balas leave to do so.

C.

Next, we turn to Balas’s Title VII claim of retaliatory discharge. We review the district court’s grant of summary judgment de novo. Castillo v. Emergency Med. Assocs., 372 F.3d 643, 646 (4th Cir.2004). We draw all reasonable inferences in favor of Balas, the non-moving party. Id.

“In order to establish a prima facie case of retaliation, a plaintiff must prove three elements: (1) that she engaged in a protected activity; (2) that her employer took an adverse employment action against her; and (3) that there was a causal link between the two events.” EEOC v. Navy Fed. Credit Union, 424 F.3d 397, 405-06 (4th Cir.2005). Balas’s alleged complaint of discrimination to Price regarding the jeans incident was a protected activity, and her termination from the company was an adverse employment action. For a successful Title VII claim, Balas must show a causal connection between these two incidents.

Balas does not dispute that Lowman, the manager responsible for firing her, was not aware of her complaint to Price regarding the jeans incident. However, Ba-las argues that Price’s involvement in the investigation that led to her termination constitutes evidence that he directly influenced that decision.

Title VII does not “limit the discrimination inquiry to the actions or statements of formal decisionmakers for the employer.” Hill v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 290 (4th Cir.2004). However, we have refused to endorse a construction of Title VII that would treat a “subordinate who has no supervisory or disciplinary authority and who does not make the final or formal employment decision [as] a decisionmaker simply because he had a substantial influence on the ultimate decision or because he has played a role, even a significant *411one, in the adverse employment decision.” Id. at 291. For Balas’s retaliatory termination claim to succeed, she must demonstrate that Price “possessed such authority as to be viewed as the one principally responsible for the decision.” Id. It is fatal to her claim that she presents no evidence to that effect.

Because Lowman did not know of the protected activity, and because Price, who allegedly influenced him, was not principally responsible for the decision to terminate Balas’s employment, we affirm the district court’s grant of summary judgment to Huntington Ingalls on the retaliatory discharge claim.

D.

Finally, we turn to the district court’s summary adjudication of Balas’s assault and battery claims. Again, we review the court’s grant of summary judgment de novo. Castillo, 372 F.3d at 646.

Battery is “an unwanted touching which is neither consented to, excused, nor justified.” Koffman v. Garnett, 265 Va. 12, 574 S.E.2d 258, 261 (2003). Assault entails “an act intended to cause either harmful or offensive contact with another person or apprehension of such contact, and that creates in that other person’s mind a reasonable apprehension of an imminent battery.” Id. (citing Restatement (Second) of Torts § 21 (1965)). “Although these two torts ‘go together like ham and eggs,’ the difference between them is ‘that between physical contact and the mere apprehension of it. One may exist without the other.’ ” Id. (quoting W. Page Keeton, Prosser and Keeton on Torts § 10 at 46).

1.

For contact to rise to the level of battery, it must be “offensive,” Restatement (Second) of Torts § 18, and “done in a rude, insolent, or angry manner,” Crosswhite v. Barnes, 139 Va. 471, 124 S.E. 242, 244 (1924). “A bodily contact is offensive if it offends a reasonable sense of personal dignity.” Restatement (Second) of Torts § 19. As Balas concedes, the quality of the act’s offensiveness is judged by an objective standard, not by whether the plaintiff found the act offensive. Id. at § 18.7

Balas argues that whether she consented to the hug is a question of fact appropriate for a jury, although she does not dispute that she never told Price to stop or that the hug was unwelcome. To the contrary, rather than objecting to the hug itself, she testified that it was the manner of the hug that made her uncomfortable: “the way [Price] swooped [her] up at [her] waist, or the way he grabbed [her] was what felt offensive.” J.A. 128.

Even if the hug was not consented to, it was “excused” or “justified,” and a reasonable person could not find it objectively offensive. See Koffman, 574 S.E.2d at 261. To constitute battery, the challenged contact must be “unwarranted by the social usages prevalent at the time and place at which it is inflicted.” Restatement (Second) of Torts § 19 cmt. a. Balas had just given Price a gift of Christmas cookies. Immediately before hugging Balas, Price thanked her and told her that she never ceased to amaze him. Given the circumstances surrounding the hug, we determine that Balas raises no genuine question of material fact as to whether the hug was objectively offensive.

*4122.

For conduct to constitute assault, it must be intended to cause harmful or offensive contact or apprehension of that contact. Koffman, 574 S.E.2d at 261. The conduct must also cause an objectively reasonable apprehension of an imminent battery. Id. Balas presented no evidence that the hug was harmful or offensive, or that Price intended the hug to involve any contact beyond the hug itself or intended to make Balas think that it would. The circumstances indicate that the requisite intent was absent, and any apprehension of an imminent battery Balas might have felt was not objectively reasonable.

We therefore affirm the district court’s grant of summary judgment as to the assault and battery claims.

III.

For the foregoing reasons, the judgment of the district court is

AFFIRMED.

2.2 Assault and Reasonable Fear 2.2 Assault and Reasonable Fear

2.2.1 Picard v. Barry Pontiac-Buick, Inc. 2.2.1 Picard v. Barry Pontiac-Buick, Inc.

            Recall that assault requires a reasonable apprehension of imminent bodily harm. The next case helps to illuminate the distinctions between assault and battery. The plaintiff brought a cameraman to expose what she saw as a dishonest repair shop. Did the facts here rise to the level of assault and battery? How much should we take the plaintiff’s identity into account in answering this question?

654 A.2d 690

Victorie A. PICARD
v.
BARRY PONTIAC-BUICK, INC. et al.

93-221-A.

Supreme Court of Rhode Island.

Feb. 9, 1995.

[691] Peter M. Cosel, Donato D'Andrea, Newport, for plaintiff.

Lauren E. Jones, Jones Associates, Brenda Coville Harrigan, Gunning, LaFazia & Gnys, Robert S. Thurston, Jones Associates, Providence, for defendant.

OPINION

LEDERBERG, Justice.

This case came before the Supreme Court on the appeal of Jesse Silvia (defendant) from a judgment against him for assault and battery, for compensatory damages in the amount of $60,346, and for punitive damages in the amount of $6,350, plus interest and costs. We affirm the judgment in respect to the assault and battery but sustain the defendant's appeal in respect to damages. We vacate the award of damages and remand the case to the Superior Court for a new trial on damages.

FACTS AND PROCEDURAL HISTORY

This case began eight years ago with a broken signal light. The plaintiff, Victorie A. Picard, brought her mother's car to Barry Pontiac-Buick, Inc. (Barry Pontiac)[1] in Newport, Rhode Island, where the car had been purchased, to have the light repaired. While the car was being repaired, plaintiff decided to have its annual inspection performed as well. The car failed this inspection because, according to a Barry Pontiac representative, the brakes needed to be replaced. The plaintiff brought the car to Kent's Alignment Service (Kent's Alignment), also located in Newport, where the car passed inspection.

The plaintiff then contacted a local television news "troubleshooter" reporter, presumably to report her experience at the two inspection sites. Shortly after Kent's Alignment had inspected plaintiff's car, Barry Pontiac phoned Kent's Alignment to ask that the car be checked again and the sticker removed because the brakes "were bad." Accordingly Edward Kent (Kent), the owner of Kent's Alignment, set January 27, 1987, as the date that plaintiff, accompanied by her goddaughter Kristen Ann Seyster (Seyster), returned with the car to Kent's garage.

Kent's Alignment was divided into a garage area separated by a glass partition from an office area. At the time of the incident at issue in this case, Seyster was in the office, while plaintiff was in the garage. After Kent inspected the car, he told plaintiff that he had been asked to call Barry Pontiac which also wished to inspect the brakes. Ray Stevens (Stevens), the service manager at Barry Pontiac arrived at Kent's Alignment, accompanied by defendant, who was employed by Barry Pontiac.

[692] The defendant began to inspect the brakes. He and plaintiff gave vastly different descriptions of what next happened. The plaintiff said she began to take a picture of defendant as he was facing away from her, presumably as evidence for the troubleshooter report. The plaintiff testified that she did intend to photograph defendant although the photograph was not intended to identify defendant. The photograph did, however, clearly show defendant fully facing the camera, standing upright while pointing his index finger at plaintiff. After the camera snapped, the events that gave rise to this case occurred.

The plaintiff testified that defendant "lunged" at her and "grabbed [her] around around [sic] the shoulders,"[2] although plaintiff did not experience any pain. The plaintiff then testified on cross-examination that after defendant grabbed her by both her shoulders, she and defendant "spun around wrestling." According to plaintiff, defendant released her after someone said, "let her go." The plaintiff then left the garage with her goddaughter.

Seyster and Stevens also testified at trial, and Kent's deposition was admitted into evidence. Seyster, who had remained in the office area, testified that she saw defendant "grab her [plaintiff's] left shoulder and try to get the picture with his other hand," but defendant did not touch either the photograph or the camera. Seyster further testified that defendant had reached for plaintiff with only one arm, not two, and that plaintiff was not spun around, shaken, picked up or thrown against a wall. Stevens testified that he did not see what transpired because his back was turned. He did, however, remember defendant "hollering" that he did not want his picture taken. Kent stated that after plaintiff came out of the office and attempted to photograph defendant, he heard defendant say something such as "don't take my picture." Kent then saw defendant reach for the camera and touch it, but saw no contact between plaintiff and defendant, nor did he see defendant lift plaintiff.

The defendant testified that as he was looking at the car, plaintiff had come up behind him and aimed the camera toward him. He then pointed at plaintiff and said, "who gave you permission to take my picture?" then walked around the car to plaintiff, placed his index finger on the camera and again asked, "who gave you permission to take my picture?" The defendant denied grabbing plaintiff, touching her body, threatening her or making any threatening gestures, scuffling with her or reaching for the photograph. He also testified that he did not intend to cause plaintiff any bodily harm.

The plaintiff testified that although she did not experience any pain immediately after the incident, she did experience numbness in her hips and legs. However, about a week after the incident, plaintiff visited William E. Kenney, M.D. (Kenney) because of "pain radiating down my right leg * * *," pain that reportedly continued periodically up to the time of trial. Kenney examined plaintiff and advised a CAT scan. W.R. Courey, M.D., of St. Anne's Hospital in Fall River, Massachusetts, prepared a radiology report on April 17, 1987, that described "[g]eneralized degenerative bulging of the annulus at [L-3-L-4, L-4-L-5 and L-5-S-1]." Kenney himself saw plaintiff five times in his office between January 30, 1987, and May 26, 1987, each time with a $30 charge.

On April 28, 1987, Kenney wrote a "To Whom it May Concern" letter, in which he stated:

"This patient had had a ruptured intervertebra disc on the left which was apparent in October or earlier of 1985. She had not complained of her right lower extremity, however, on 1/30/87 she was seen with a history that she had been assaulted on 1/22/87 and had pain in the right lower extremity. The CAT scan taken at St. Anne's Hospital on 4/17/87 reveals nerve root pressure on the right at L5-S1 level. [693]Therefore, this change is probably causally related with the assault."

On June 1, 1987, Kenney wrote a second "To Whom it May Concern" letter, stating: "The question has been raised as to whether or not the pain in the right leg is permanent. The answer is that it is probably not permanent, but there is no way that I have of knowing for sure whether it is permanent or not." (Emphasis added.) But, twenty-four days later, with no evidence of an intervening examination of plaintiff, Kenney, on June 25, 1987, wrote to plaintiff's attorney:

"It is apparent that the patient sustained a ruptured disc on the right at L5-S1 found by CAT scan on 4/17/87, following an assault on 1/22/87. The ruptured disc at L5-S1 on the right is a permanent injury." (Emphasis added.)

The injured area identified by Kenney was the right L5-S1 region of the spinal column. The defendant introduced into evidence a Newport Hospital Report dated March 26, 1985, which showed a left-sided disc herniation at the L5-S1 locus. The plaintiff confirmed at trial that she had had a history of back problems for at least ten years prior to her encounter with defendant.

On January 6, 1993, some five and one-half years after he last examined plaintiff, Kenney again wrote to plaintiff's counsel and stated:

"To a reasonable degree of medical certainty, in my opinion, the ruptured disc Victorie Picard sustained at L5-S1 was proximately caused by the assault of January 22, 1987. The injury sustained on January 22, 1987, in my opinion, stated with a reasonable degree of medical certainty is permanent in nature."

On January 11, 1993, Kenney swore an affidavit entitled: "Amended Affidavit Under Section 9-17-27 [sic] of the Rhode Island General Laws Entitled 'Evidence of Charges for Medical and Hospital Services' " that amended his affidavit of 1987. Attached to the amended affidavit were Kenney's letter of January 6, 1993, the radiology report from St. Anne's Hospital dated April 17, 1987, and the receipts from plaintiff's five visits to Kenney's office. The original affidavit had contained receipts of the office visits, Kenney's letters of June 25, 1987, June 1, 1987, and April 28, 1987, the radiology report and a letter of May 5, 1987, describing the radiology report.

The amended affidavit stated in part:

"Now comes William E. Kenney, M.D. and makes affidavit under oath and says as follows: * * *

(3) That the attached record of examination of the person examined reflects my true opinion with respect to the diagnosis, prognosis, and proximate cause of the conditions diagnosed.

(4) That to a reasonable degree of medical certainty, the condition detailed in the attached record, related in the history provided by the patient, was the proximate result of the incident which occurred on January 22, 1987."

Other than plaintiff's testimony, these affidavits and their appended records and letters, admitted into evidence by the trial judge, constituted the only medical evidence that documented plaintiff's alleged injury. Kenney was not deposed, nor did he testify at trial.

The plaintiff prevailed at trial and was awarded compensatory damages in the amount of $60,346. Because the trial justice found that defendant's conduct was "sufficiently egrigious [sic]," punitive damages in the amount of $6,350 were imposed, for a total judgment of $66,696, plus interest and costs. The defendant appealed the judgment, arguing (1) that plaintiff failed to prove an assault and battery; (2) that plaintiff failed to prove that defendant's actions in fact caused the alleged harm to her; and (3) that the damage awards were grossly excessive and inappropriate as a matter of law.

STANDARD OF REVIEW

The findings made by a trial justice, sitting without a jury, are accorded great weight. Raheb v. Lemenski, 115 R.I. 576, 579, 350 A.2d 397, 399 (1976). These findings will not be disturbed on appeal absent a determination that the trial justice misconceived or overlooked relevant evidence or was otherwise clearly wrong. Rego Displays, [694] Inc. v. Fournier, 119 R.I. 469, 473, 379 A.2d 1098, 1100-01 (1977); Barattini v. McGovern, 110 R.I. 360, 362, 292 A.2d 860, 861 (1972).

ASSAULT AND BATTERY

The defendant contended that plaintiff failed to prove the occurrence of an assault because plaintiff was not placed in reasonable fear of imminent bodily harm. Further, defendant argued that plaintiff failed to prove a battery because the evidence failed to establish that defendant intended to inflict an unconsented touching of plaintiff. We disagree with both contentions.

Assault and battery are separate acts, usually arising from the same transaction, each having independent significance. Proffitt v. Ricci, 463 A.2d 514, 517 (R.I.1983). "An assault is a physical act of a threatening nature or an offer of corporal injury which puts an individual in reasonable fear of imminent bodily harm." Id. It is a plaintiff's apprehension of injury which renders a defendant's act compensable. Id.; see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 10, at 43 (5th ed. 1984) ("[t]he damages recoverable for [assault] are those for the plaintiff's mental disturbance, including fright, humiliation and the like, as well as any physical illness which may result from them"). This apprehension must be the type of fear normally aroused in the mind of a reasonable person. Keeton et al., supra, at 44.

The plaintiff testified that she was frightened by defendant's actions. A review of the attendant circumstances attests that such a reaction was reasonable. The defendant admitted approaching plaintiff, and the photograph taken that day clearly showed defendant pointing his finger at plaintiff as defendant approached her. Because plaintiff's apprehension of imminent bodily harm was reasonable at that point, plaintiff has established a prima facie case of assault.

We have defined battery as an act that was intended to cause, and in fact did cause, "an offensive contact with or unconsented touching of or trauma upon the body of another, thereby generally resulting in the consummation of the assault. * * * An intent to injure plaintiff, however, is unnecessary in a situation in which a defendant willfully sets in motion a force that in its ordinary course causes the injury." Proffitt, 463 A.2d at 517.

In the instant case, defendant contended that a battery did not occur because defendant did not intend to touch or injure plaintiff. Rather, defendant argued, the evidence showed that he intended to touch plaintiff's camera, not plaintiff's person, and therefore the contact was insufficient to prove battery. With this contention we must disagree. Even if this court were to accept defendant's characterization of the incident, a battery had nonetheless occurred. The defendant failed to prove that his actions on January 22, 1987, were accidental or involuntary. Therefore, defendant's offensive contact with an object attached to or identified with plaintiff's body was sufficient to constitute a battery. As noted in the comments to the Restatement (Second) Torts § 18, comment c at 31 (1965):

"Unpermitted and intentional contacts with anything so connected with the body as to be customarily regarded as part of the other's person and therefore as partaking of its inviolability is actionable as an offensive contact with his person. There are some things such as clothing or a cane or, indeed, anything directly grasped by the hand which are so intimately connected with one's body as to be universally regarded as part of the person." (Emphasis added.)

The defendant's contact with the camera clutched in plaintiff's hand was thus sufficient to constitute a battery. We conclude, therefore, that plaintiff has proven the elements of assault and battery.

PROOF OF CAUSATION

The defendant next asserted that evidence was insufficient to prove that his actions caused plaintiff's condition because the medical evidence submitted by plaintiff was [695] not competent.[3] We agree.

At the start of trial, defendant objected to the admission of Kenney's January 11, 1993 affidavit which refers to Kenney's opinions to the permanency of plaintiff's condition. The record disclosed that Kenney last examined plaintiff on May 26, 1987, but included no evidence that Kenney examined plaintiff at any time during the ensuing five and one-half year period before executing the affidavit. At the time of trial Kenney had been retired for six years and resided in Massachusetts. It is an impermissible affront to reason to uphold Kenney's affidavit which attested to the cause and permanency of injury in a patient whom he had not treated in five and one-half years and whose medical file he apparently did not consult at the time he signed the affidavit.[4] Furthermore, the material which supported the affidavit was substantively inconsistent. Kenney's 1993 letter stated that the injury to plaintiff was "permanent in nature." However, in support of the 1987 affidavit, shortly after his last examination of plaintiff, he wrote on June 1, 1987, that the injury was "probably not permanent." Yet, twenty-four days later, without reexamining plaintiff, he stated in a letter to plaintiff's attorney, that the injury was permanent, a position which he maintained until 1993, though he never reexamined plaintiff in the intervening five and one-half years.

In Parrillo v. F.W. Woolworth Co., 518 A.2d 354, 355 (R.I.1986), this court stated that, "The substitution of a written affidavit for live medical testimony * * * in no way relaxes the minimum requirements for the admission of competent medical testimony." Further, we have noted that, "Although all litigants have the right to take advantage of the provisions of § 9-19-27, they run the risk of a failure of proof unless the medical picture is sufficiently clear and unambiguous to lend itself to this simplified manner of proof." Id. at 356. In the instant case, the conflicting descriptions by Kenney concerning the permanency of plaintiff's injury and the length of time between his examinations and the production of the amended affidavit conclusively demonstrate that the proof was not "clear and unambiguous." Id. Our careful review of the record failed to disclose conclusive evidence that plaintiff's alleged injuries were caused by defendant's assault and battery and that such alleged injury was permanent. Indeed, the trial justice stated that "the disability that she [plaintiff] suffers under is per the medical opinion permanent, or at least was at the time of the opinion." The trial justice's apparent doubt as to whether the injury was permanent at the time of trial illustrated further plaintiff's failure to present sufficient medical evidence under this simplified manner of proof. See Parrillo, 518 A.2d at 356. We therefore conclude that the medical evidence presented by plaintiff was incompetent to establish that the assault and battery by defendant was the proximate cause of plaintiff's alleged injury.

DAMAGES

A. Compensatory Damages

The defendant next argued that the trial justice's award of compensatory damages in the amount of $60,346 was grossly excessive. We agree.

The trial justice based the award of compensatory damages in part on the pain and suffering alleged by plaintiff, whom the trial justice found credible and candid. The trial justice found that the inconsistencies in the testimony of the witnesses presented by plaintiff were "not significant in [the] Court's [696] mind." Such a conclusion, however, ignored the contradictions between the witnesses' testimony and the internal inconsistencies of plaintiff's own testimony. Indeed, our review of the record revealed that plaintiff's testimony was remarkably malleable.[5] The plaintiff transformed a slight touching (as it was characterized by all witnesses except plaintiff) into a major assault and battery.

In addition to the inconsistencies in plaintiff's testimony concerning the event, plaintiff's testimony in respect to her pain and suffering was not credible, given her medical disabilities that predated the alleged additional injury that she claimed to have sustained as a result of the assault and battery. The trial justice was clearly wrong in relying on plaintiff's testimony concerning her pain and suffering absent additional evidence to establish the specific pain and suffering that developed from this contact with defendant.

This court will not disturb an award for pain and suffering unless the award " 'shocks the conscience' or is grossly excessive." Proffitt, 463 A.2d at 519 (citing Bruno v. Caianiello, 121 R.I. 913, 917, 404 A.2d 62, 65 (1979)). Given the absence of competent medical evidence of causation and given that plaintiff's testimony concerning the assault and her subsequent injuries was not credible, the award of $60,346 in compensatory damages was clearly excessive and out of all proportion to the alleged injury. Consequently, we vacate the award.

B. Punitive Damages

The defendant also argued that punitive damages should not have been awarded because the trial justice did not find that defendant acted with malice or in bad faith as directed by Palmisano v. Toth, 624 A.2d 314, 318 (R.I.1993). Disfavored in the law, an award of punitive damages is an extraordinary sanction permitted only with great caution and within narrow limits. Id. In the instant case there was no proof of malice or bad faith nor was there a finding that defendant acted with malice. Consequently, the award of punitive damages in this case was not consistent with the purpose of such damages, namely, the deterrence of a defendant's "willfulness, recklessness or wickedness," because evidence of these factors was not presented. Id. (quoting Sherman v. McDermott, 114 R.I. 107, 109, 329 A.2d 195, 196 (1974)).

In conclusion, we deny in part and sustain in part the defendant's appeal. We affirm the judgment of the Superior Court in respect to the defendant's commission of assault and battery, but we vacate the awards of compensatory and punitive damages. We remand the case to the Superior Court for a new trial on the damages sustained by the plaintiff.

[1] After plaintiff rested, Barry Pontiac moved to dismiss the suit against it pursuant to Rule 41(b)(2) of the Superior Court Rules of Civil Procedure. The trial justice granted the motion, and therefore, Barry Pontiac is not a party to this appeal.

[2] In a statement describing the incident to the Newport Police, plaintiff stated, "HE GRABBED MY COAT[.] I LUNGED BACKWARD HURTING MY BACK[.]" In a Social Security Administration "Reconsideration Disability Report" dated March 20, 1987, plaintiff stated that she had been "attack [sic] by a merchanic [sic] from Barry Pontiac" and that she had been "[t]hrown against a wall at Kents [sic] garage [.]" The plaintiff testified at trial that, notwithstanding the Disability Report, she had not been thrown against a wall.

[3] The affidavit was admitted under G.L.1956 (1985 Reenactment) § 9-19-27, which states in pertinent part:

"(a) [I]n any proceeding commenced in any court * * *, an itemized bill and reports, including hospital medical records, relating to medical * * * services * * * and/or any report of any examination of said injured person, including, but not limited to, hospital medical records subscribed and sworn to * * * by the physician * * * shall be admissible as evidence of * * * the necessity of such services or treatment, the diagnosis of said physician * * *, the prognosis of such physician * * * the opinion of such physician * * * as to proximate cause of the condition so diagnosed, the opinion of such physician * * * as to disability or incapacity, if any, proximately resulting from the condition so diagnosed * * *."

[4] Counsel for Barry Pontiac reported at trial that Kenney had retired six years earlier and had sent his medical records to "dead files."

[5] The following exchanges between plaintiff and defense counsel illustrate the nature of plaintiff's testimony:

"Q So it's possible that you told Dr. Kenney that you were shaken by the assailant?

"A Well, I was shaken, but maybe not in the terms--but I was shook up. That's it. You know what I mean. I was shook up mentally. I was ascared [sic]."

and again,

"Q Are you claiming that he [Silvia] physically picked you up and swung you around?

"A Well, my feet wasn't hitting the floor. * * *.

"Q So in addition to Mr. Silvia grabbing you by the shoulders he physically lifted you off the ground, is that correct?

"A I can't say for sure because I felt dizzy. The room was spinning. So I felt like I was off the floor, but I don't know because I was just moving around fast."

2.2.2 Speicher v. Rotjora, 766 N.W.2d 649 (Iowa App. 2009) 2.2.2 Speicher v. Rotjora, 766 N.W.2d 649 (Iowa App. 2009)

            Intentional torts often get tangled up in broader cultural and social battles. One such instance involves domestic violence.  Consider how the law of assault may limit these claims in the next case.

EISENHAUER, J.

            *1 Daniel Rajtora and Kendra Speicher are the parents of an eight-year-old daughter. Although they never married, the parties have resided with one another on various occasions. Daniel appeals a civil domestic abuse protective order issued in favor of Kendra. He argues the district court's finding he committed domestic abuse assault is not supported by a preponderance of the evidence. He specifically maintains there was insufficient evidence he acted in a manner “intended to place another in fear of immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.” See Iowa Code §§ 239.2(2)708.1(2) (2007).

            The district court ruled on objections as they were made and tried this case as a law action. Therefore, our review is for the correction of errors at law. See Bacon v. Bacon, 567 N.W.2d 414, 417 (Iowa 1997). In a law action, the district court's findings of fact are binding upon us if supported by substantial evidence. Id.

            On March 30, 2008, Daniel returned their daughter to Kendra's residence after a visitation. Daniel did not see Kendra at any time on March 30, and did not speak to her at the drop-off. Kendra testified she called Daniel about five minutes later using a new cell phone Daniel had just purchased for their daughter. Kendra asked Daniel to prevent their daughter from taking her new cell phone to church or school. Kendra testified Daniel threatened her by replying: “Shut the f* * * up. Don't worry about it and shut the f* * * up before I come over there and beat both [Kendra and boyfriend] your asses.”

            Kendra stated she placed the call to Daniel's cell phone and he did not say where he was located. However, she believed he had returned to a friend's house one to two miles away. At the hearing, Daniel admitted swearing, but denied making a threat. Daniel was at his friend's house during the call.

            Even assuming Daniel made the alleged threat, we are compelled to find insufficient evidence of assault because Kendra did not establish Daniel had “an apparent ability to execute the act.” See Iowa Code § 708.1(2). Assault requires “fear of immediate physical contact” coupled with “the apparent ability to execute” the assault. Id. The record does not establish Daniel's apparent ability to execute the threat at the time the threat was made. The testimony only established Kendra's belief Daniel had a future ability to return from a distance and execute the threat.

            We find insufficient evidence to support the assault element of domestic abuse assault. We reverse and remand for dismissal of the protective order.

REVERSED AND REMANDED.

2.2.3 Marcantonio v. Dudzinski 2.2.3 Marcantonio v. Dudzinski

Anthony MARCANTONIO, Plaintiff, v. Kyle DUDZINSKI et al., Defendants.

CASE NO. 3:15-cv-00029

United States District Court, W.D. Virginia, CHARLOTTESVILLE DIVISION.

Signed December 17, 2015

*621Bridget Ann Zerner, John J.E. Markham, II, Markham & Read, Boston, MA, *622Jonathan Martin Rogers, Floyd, VA, for Plaintiff.

Charles Garrison Meyer, III, Lindsey Anne Lewis, Leclair Ryan, PC, Erin Boyd Ashwell, John Benjamin Rottenborn, Thomas T. Cullen, Woods Rogers PLC, Timothy J. Heaphy, Lewis Franklin Powell, III, Alexandra Leigh Klein, Hunton & Williams LLP, Richmond, VA, John Patrick Rowan, Meghan Mitchell Cloud, McGuire Woods LLP, Washington, DC, Harry Robert Yates, III, Leclair Ryan, Dustin Thomas Rosser, John Peter Catta-no, Central Virginia Litigation, PLC, John Walter Zunka, Richard Hustis Milnor, Elizabeth Camp Southall, Zunka, Milnor & Carter, Ltd., Charlottesville, VA, Stephen Anthony Horvath, Andrew Rulon Alder, Bancroft, McGavin, Horvath, & Judkins, PC, Fairfax, VA, Michael Wayne Robinson, Venable LLP, Tysons Corner, VA, for Defendants.

MEMORANDUM OPINION

NORMAN K. MOON, UNITED STATES DISTRICT JUDGE

This case is before the Court after briefing and oral argument on Defendants’ motions to dismiss for failure to state a claim. Anthony Marcantonio (“Plaintiff’) filed this diversity action against former teammates on the University of Virginia (“UVA”) men’s swim team for several torts under Virginia law.1 Generally, Plaintiff alleges that Defendants subjected him to assorted forms of hazing, threats, verbal abuse, intimidation, and unwanted touching or limitations on his physical movement. The crux of the Complaint is the purported “hazing” of new swim team members by upperclassmen that took place one evening at an off-campus residence known as the “Swim House.” Plaintiff also contends that, as part of Defendants’ effort to cover up their alleged misdeeds, they retaliated against him such that he no longer continued swimming for UVA and left the school.

There are five defendants, all of whom have filed a motion to dismiss: Kyle Dud-zinski; Luke Papendick; Charles Rommel; David Ingraham; and Jacob Pearce. The Complaint alleges ten counts, all against each Defendant, for assault, battery, false imprisonment, hazing, tortious interference with contractual relations, intentional infliction of emotional distress, punitive damages, common law and statutory conspiracy, and negligence. For the reasons discussed below, the motions to dismiss will be granted in part and denied in part.

STANDARD OF REVIEW

A Rule 12(b)(6) motion to dismiss merely tests the legal sufficiency of a complaint to determine whether the plaintiff has properly stated a claim; “it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses.” Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir.1992). Although a complaint “does not need detailed factual allegations, a plaintiffs obligation to provide the ‘grounds’ of his entitle[ment] to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations omitted). A court need not “accept the legal conclusions drawn from the *623facts” or “accept as true unwarranted inferences, unreasonable conclusions, or arguments.” Eastern Shore Markets, Inc. v. J.D. Assocs. Ltd. P’ship, 213 F.3d 175, 180 (4th Cir.2000). “Factual allegations must be enough to raise a right to relief above the speculative level,” Twombly, 550 U.S. at 555, 127 S.Ct. 1955, with all allegations in the complaint taken as true and all reasonable inferences drawn in the plaintiffs favor. Chao v. Rivendell Woods, Inc., 415 F.3d 342, 346 (4th Cir.2005). Rule 12(b)(6) does “not require heightened fact pleading of specifics, but only enough facts to state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570, 127 S.Ct. 1955.

FACTS AS ALLEGED

Plaintiffs Background and Matriculation to UVA

Plaintiff Anthony Marcantonio graduated high school in 2013 as an honor student. Compl. ¶ 11. During his high school days, he excelled in competitive swimming, devoting many morning, evenings, and weekends to practice and eventually developing a national reputation in the amateur swimming community - due to his exploits. Compl. ¶¶ 12-14. Consequently, several universities recruited him for their respective swim teams, and Plaintiff welcomed the opportunity to attend a top-flight academic institution with a swimming team he hoped could springboard him into the world of professional or Olympic swimming. Compl. ¶¶ 14-16.

The University of Virginia, Plaintiff believed, presented such an opportunity. UVA’s swimming coach impressed Plaintiff, who was particularly enamored with the supportive environment surrounding the team. Compl. ¶ 17. The “anti-hazing” policy in UVA’s Student Handbook — which forbade “any action ... by members of a student organization towards [another] member[ ] ... designed to or producing] mental or physical harassment, discomfort, or ridicule” — also appealed to Plaintiff, as did the provision of the UVA Standards of Conduct prohibiting hazing and “physical assault.” Compl. ¶ 18. These aspects, as well as the University’s stellar reputation generally and in academics specifically, led Plaintiff to matriculate to UVA in August 2014 to study and to swim.2 Compl. ¶¶ 19-20, 22.

Emails from “Mr. Mean”

After Plaintiff arrived on Grounds, Defendants Dudzinski and Papendick — up-perclass members of the swim team— called a meeting of the first-year swimmers and informed them that “team bonding” would take place during a so-called “welcome week.” Compl. ¶ 23. Shortly thereafter, on the evening of August 26, 2014, Plaintiff received an email from the aptly-named “Mr. Mean,” in actuality an email account persona created by Defendants Dudzinski, Papendick, Romniel, Ingraham, and Pearce. The email— “jointly] authored]” by “defendants”— was addressed to “[d]earrest [sic] shitcuts” (i.e., the first-year swimmers) who Mr. Mean was “fucking embarrassed” to welcome to ÚVA on account of their b.eing “gender-neutral dick sucks” (whatever that means). Compl. ¶¶ 24, 26(xliii). Mr. Mean emphasized that “what I say, goes,” announced that the first event of Welcome Week would commence the next day, and instructed the first-year swimmers to arrive at the appointed time at 1100 Wert-land Street, Charlottesville, Virginia. Id. True to his moniker, Mr. Mean closed by *624warning the first-years that (1) if they arrived even one second early or late, he would sodomize their future fiancées in front of them, and (2) if they “tell a soul” about the Swim House rendezvous, they would be sodomized with a “dry ice dildo we have packed away,” so they better “keep [their] FUCKING MOUTHS SHUT.” Compl. ¶ 24 (emphasis added). The next day (but prior to the appointed arrival time), Mr. Mean sent another profane, but much shorter, email to the first-year swimmers moving the appointed meeting time. Id.

Plaintiff was “unsure” whether the emails were a joke or whether he should be “concerned or fearful” due to them. Compl. ¶ 25. But he “did not want to appear squeamish” to his teammates, so he arrived at the appointed time to 1100 Wertland Street, known as the “Swim House” because upperclass swimmers lived there. Id. What happened next, Plaintiff alleges, “was instigated by the defendants who were the organizers [of] and who participated” in the events at the Swim House. Compl. ¶ 26.

Events at the Swim House

When Plaintiff arrived, the Swim House’s interior was dark except for a strobe light, and “heavy-metal, satanic music” blared. Compl. ¶ 26(i). Once inside, Plaintiff saw another first-year who appeared frightened. Compl. ¶ 26(h). An upperclassman instructed him to sit down and to remove his tie and “anything else he didn’t want to get wet.” Compl. ¶ 26(iii). Defendant Rommel entered the room and yelled at Plaintiff, and Defendant Dudzin-ski appeared, asking the first-years if they were scared. Compl. ¶¶ 26(iv)-(v). Defendant Ingraham instructed the first-years to say “pussy,” and then “defendants” placed buckets on the first-years’ heads. Compl. ¶ 26(vii). “Defendants” taunted and insulted them. Compl. ¶ 26(vni). Plaintiff began to fear for his safety. Compl. ¶ 26(ix). “[Defendants” then removed the buckets, instructing the first-years to assemble in a line and placing them accordingly. Compl. ¶26^). Defendants Dudzin-ski and Ingraham came “menacingly close” to Plaintiff “with sudden and threatening movements and grunts” during this time. Compl. ¶ 26(xi).

“Defendants” then blindfolded the first-years, including Plaintiff, with dirty ties and cummerbunds and screamed at them to perform an “Elephant Walk” (ie., to reach between their legs to grab the genitals of the person behind them). Compl. ¶¶ 26(xii)-(xiii). This Elephant Walk procession ambled into a dark bathroom, where Plaintiff “felt closed in” and became disoriented and “more concerned.” Compl. ¶ 26(xv). Once inside, Defendant Pearce yelled that the first-years “had one hour” and slammed the door. Compl. ¶ 26(xvi). The first-years turned on the bathroom lights, which revealed several containers of alcohol and other liquids; all methods of pouring out the containers (the sink, toilet, windows, and shower drain) were blocked or duct-taped shut. Compl. ¶ 26(xvii). “Defendants” screamed at the first-years to turn off the lights and unidentified individuals yelled at them to drink all the liquids immediately, lest they “get the dry-ice dildo” treatment for pouring any out. Compl. ¶ 26(xviii). One first-year complained of an injury caused by Defendant Rommel when shards of a glass he shattered on the floor ricocheted into the first-year’s eye. Compl. ¶ 26(xix).

For roughly the next hour, “defendants” periodically opened the bathroom door to demand an empty bottle as proof of consumption. Compl. ¶ 26(xxi). “All first-years who drank the alcohol became intoxicated.” Compl. ¶ 26(xxii). Defendants Rommel and Pearce opened the door to shout in obscenities before slamming it closed. *625Compl. ¶ 26(xxiii). “Defendants” also threw in a questionnaire and a flashlight, and occasionally “a bucket of water would be thrown in.” Compl. ¶ 26(xxv). The bathroom became hot and humid because its radiator was turned on. Compl. ¶ 26(xxvi). “[Defendants” again opened the door, this time ordering the first-years to fill out a questionnaire including both benign identification questions {e.g., name, hometown, birthdate) and offensive/intrusive ones (e.g., favorite sexual position, how “many girls on the women’s team have you hooked up with”). Compl. ¶ 26(xxvii). Similar offensive questioning occurred by “[d]efendants” from outside the bathroom, including by Defendant Ingraham of Plaintiff, who fabricated answers and “felt humiliated and ashamed.” Compl. ¶ 26(xxviii).

Eventually, “defendants” removed the first-years from the bathroom and “made” them face a corner blindfolded. Compl. ¶ 26(xxix). Plaintiff became “more fearful,” believing that “defendants ... had become drunk and had lost all self-control.” Compl. ¶ 26(xxxi). Defendants again interrogated the first-years; Defendant Rommel badgered Plaintiff and instructed him that his name was “Anthony Fucking Weiner.” Compl. ¶ 26(xxxv). Meanwhile, “defendants were or were causing others to pour an unknown liquid over his head.” Compl. ¶ 26(xxxvi). Rommel asked Plaintiff for the most offensive term for a black person he could think of and, after Plaintiff responded, his blindfold was removed to reveal an African-American in front of him. Compl. ¶ 26(xxxvi). Defendant Rommel responded with jeering jubilation. Id. Plaintiff became “delirious and could no longer think clearly.” Compl. ¶ 26(xxxviii).

Defendants led the first-years to the back of the Swim House. Compl. ¶ 26(xliii). Plaintiff had previously insisted he did not drink alcohol and therefore was “forced” to drink a gallon of milk and four glasses of prune juice. Compl. ¶ 26(xliv). As a result, he vomited on the back porch while “defendants” taunted him. Id. Defendant Pearce produced a bucket of live goldfish, and “defendants” instructed each first-year to name and then eat them. Compl. ¶ 26(xlv). “[Fjearing for his safety,” Plaintiff complied, and “defendants” made him prove that he had chewed his goldfish rather than swallowed it whole. Id. Plaintiff then received another goldfish to name and to hold in a plastic cup. Compl. ¶ 26(xlvii). But the cup was knocked from Plaintiffs hand, and “defendants” “tried to stomp” the second goldfish to death while yelling at Plaintiff he must try to save it. Id. Alas, the goldfish suffered fatal injuries. Compl. ¶ 26(xlviii).

Finally, the first-years were given dirty ■ ties and cummerbunds, instructed that they must wear them for the rest of Welcome Week, and ordered to complete a scavenger list that required the performance of theft, in violation of UVA’s Honor Code. Compl. ¶ 26(xlix). After five hours, the Swim House soiree concluded in the early morning of August 28, 2014. Compl. ¶ 27. Plaintiff worried that Defendants “had the power to deprive him of his ability to swim for UVA.” Id.

Additional Events and Fallout

■ In the afternoon of August 28th, Mr. Mean sent another email to Plaintiff and his fellow first-years, this one instructing them — in both profane and insulting language — to save seats at UVA’s amphithea-tre for an event the next day. Compl. ¶ 80. Plaintiff “felt compelled to comply out of fear” and thus camped out overnight. Compl. ¶ 31.

“[Djefendants” instructed Plaintiff that if he was asked about his teammate’s eye injury caused by Defendant Rommel breaking glass, he was to lie. Compl. ¶ 32. Defendant Ingraham interrupted a meeting between Plaintiff and an academic ad-*626visor to insist that Plaintiff remove his mandatory tie, for fear that the UVA swim coach would suspect hazing. Compl. ¶ 34.

On September 6, 2014, UVA’s swim coach learned of potential hazing problems in the program. Compl. ¶ 36. He questioned all the first-years about the issue, including Plaintiff, who confirmed the events at the Swim House. Id. Plaintiff also described the affair to an administrator at UVA two days later. Id. Defendants — after learning Plaintiff had disclosed the events at the Swim House— “ostracized and threatened” Plaintiff, who was instructed by his coach to practice apart from his teammates out of concern for his safety. Compl. ¶¶ 37, 39. Plaintiff had to exit the pool whenever his teammates arrived to practice because UVA’s swim coach said he “could not guarantee[ ]” Plaintiffs safety. Compl. ¶ 37. This altered schedule affected Plaintiffs training regimen and, ultimately, he “left the school.” Compl. ¶¶ 38-40.

ANALYSIS

I. General Allegations Against “Defendants” and the Rule 12(b)(6) Standard

A common argument made by all Defendants is that the Complaint does not at times specifically identify which defendant (or any defendant) took certain actions, and thus fails to state a claim. This is a valid concern, as the Complaint — whether strategically or out of necessity — contains many vague or ambiguous allegations. There are at least three manifestations of this issue. First, the. Complaint often lumps together all “Defendants” without regard for which defendant actually did what. For instance, unspecified “defendants” are alleged to have “put buckets on” Plaintiffs head, taunted and insulted him, placed him in a line, and blindfolded him. Compl. ¶¶ 26(vii), (viii), (x), (xii). Second, the Complaint uses passive voice and omits the identity of the actor (e.g., first-years “were forced” to remain in the bathroom; Plaintiff “was again forced” to sit, “was pushed and shoved back” into his seat, and “was then made to stand up again”). Id. ¶¶ 26(xxi), (xxxii), (xxxvii)(xxxviii). Third, some allegations assert that “upperclassmen” took certain actions (such as telling Plaintiff to sit down and ordering him to memorize trivia answers, id. ¶¶ 26(iii), (xlvi)), an ambiguous term that could encompass Defendants, non-Defendant upperclassmen, or a mix of the two groups.

Although citing and generally discussing Twombly and Iqbal, the parties have not identified authorities specifically addressing the above pleading practices. In the Fourth Circuit and elsewhere, courts have interpreted Twombly and Iqbal to mean that generic or general allegations about the conduct of “defendants,” without more, fail to state a claim. E.g., Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir.2008) (use of “collective term ’Defendants’ ” not proper pleading practice); Bryson v. Gonzales, 534 F.3d 1282, 1290 (10th Cir.2008) (“conclusory allegations that simply name the ’Defendants’ generically” fail to state claim); Raub v. Bowen, 960 F.Supp.2d 602, 616 (E.D.Va.2013) (concluding “vagaries” in “ambiguous” false imprisonment count asserted against “one or more Defendants” warranted dismissal); Boykin Anchor Co. v. AT & T Corp., No. 5:10-CV-591-FL, 2011 WL 1456388, at *4 (E.D.N.C. Apr. 14, 2011) (holding “plaintiff cannot rely on bare allegations relating to the conduct of ’all defendants’”); Maisha v. Univ. of N. Carolina, No. 1:12-CV-371, 2013 WL 1232947, at *6 (M.D.N.C. Mar. 27, 2013) (dismissing claims where complaint “was often vague as to who took what action” and made “no specific allegations” against certain defendants); Baca v. Callahan, No. *627CV-10-885-PHX-GMS, 2010 WL 2757251, at *1 (D.Ariz. July 12, 2010) (dismissing complaint against ten defendants that did “little to clarify each Defendant’s role in the underlying transaction”); see also Evans v. Chalmers, 703 F.3d 636, 661 (4th Cir.2012) (Wilkinson, J., concurring). Nevertheless, with the exception of Defendant Papendick, the Complaint does supplement its generic or ambiguous references with several specific allegations against Defendants by name. Accordingly, the claims against them will be analyzed further based on the parties’ substantive legal arguments.

As for Defendant Papendick, all but the common law conspiracy claim (Count VII) and punitive damages claim (Count IX) against him do not warrant further consideration insofar as they relate to his own personal actions. As Plaintiff admits (dkt. no. 47 at 16 n.5) and unlike with the other Defendants, there are only two substantive allegations against Defendant Papendick by name: he informed the first-year swimmers about Welcome Week, and he was co-creator of the “Mr. Mean” persona. Compl. ¶¶ 23-24. While these facts might support conspiracy and punitive damages claims, the other claims against him fall short based on the aforementioned authorities.3 Butler v. Bank of Am., N.A., 690 F.3d 959, 961 (8th Cir.2012) (holding that general allegations against all defendants did not state claim against particular defendant who was specifically referenced only twice in the complaint). The Complaint even lacks any specific allegation that Defendant Papendick was actually present at the Swim House on the night in question, or that he participated in the alleged “cover up” and retaliation against Plaintiff.4 Accordingly, but for the common law conspiracy and punitive damages counts, all claims against Defendant Papendick will be dismissed to the extent they allege that Papendick himself directly committed them.5

II. Count-by-COunt Analysis

1. Assault

Assault under Virginia law is “an act intended to cause either harmful or offensive contact with another person or apprehension of such contact, and that creates in that other person’s mind a reasonable apprehension of an imminent battery.” Koffman v. Garnett, 265 Va. 12, 16, 574 S.E.2d 258, 261 (Va.2003). To the extent this claim is based upon the Mr. Mean emails, it falls short. Given the intangible nature of email and the temporal gap between when the emails were received and when Plaintiff arrived at the Swim House, the immediacy required for assault is lacking. Indeed, shouting profanities and threats even in close physical proximity does not constitute assault. Bennett v. Commonwealth, 35 Va.App. 442, 449, 546 S.E.2d 209, 212 (Va.Ct.App.2001) (threatening a “blood bath” within inches of police officers was not assault). Plaintiffs own authority also acknowledges “[t]here can *628be no assault if the defendant is too far away to commit a battery.” Goforth v. Office Max, 48 Va. Cir. 463, 1999 WL 33722384, at *6 (Norfolk Cir.Ct.1999).

There is, however, more to the Complaint that the Mr. Mean emails. Defendants Rommel, Pearce, and Ingraham assert that the facts are insufficient to show an assault. But Rommel frequently screamed, yelled, and slammed doors at Plaintiff and others. Compl. ¶¶ 26(iv), (xxiii), (xxiv). He also shattered a glass bottle on the ground at the Swim House, causing shards to fly into another individual’s eye.6 Compl. t26(xix). Paragraph 26(xi) alleges that Defendants Ingraham and Dudzinski approached Plaintiff and made sudden and threatening movements towards him, which constitutes assault. Defendant Pearce repeatedly slammed shut a door near Plaintiff. Compl. ¶¶ 26(xvi), (xxiii). And all of these facts are supplemented by other general allegations against all Defendants, such as throwing buckets of water at Plaintiff, pouring liquid on him, and threatening sodomy in a “menacing way.” Compl. ¶¶ 26(xxv), (xxxvi), 42. Consequently, the Court will not dismiss the assault count against Defendants other than Pa-pendick.

2. Battery

“The tort of battery is an unwanted touching which is neither consented to, excused, nor justified.” King v. McMillan, 594 F.3d 301, 312 (4th Cir.2010) (holding that reasonable jury could have found compliance with request by supervisor/sheriff for a kiss was not consent). Paragraph 45 of the Complaint summarizes the battery claim. It is based on Defendants placing a garbage can on Plaintiffs head, forcibly blindfolding him, leading him around while blindfolded, forcing him to ingest milk and prune juice, and pouring liquids on his head while blindfolded.

Defendant Dudzinski argues that Plaintiff consented to the alleged touching. He points out that Plaintiff arrived at the Swim House due to his own desire to fit in. Compl. ¶ 25. Nor is there any indication, Dudzinski notes, that Plaintiff objected to the Swim House happenings or at any time tried to leave. Dudzinski argues that Plaintiffs supposed “voluntary participation” in the activity was tantamount to consent. But this argument falters when confronted with the Complaint’s allegations that Plaintiff “was delirious and could no longer think clearly,” “was afraid for his life,” “felt compelled to comply out of fear,” and “felt captive and not free to leave.” “If consent is coerced or obtained by fraud, the touching is unlawful.” Gnadt v. Commonwealth., 27 Va.App. 148, 151, 497 S.E.2d 887, 888 (1998); see King, 594 F.3d at 312.7

Lack of consent vis-a-vis battery is an element Plaintiff must prove. In “the ease of battery, the plaintiffs burden is to show that the defendant intended to and did cause either harm or ‘offense,’ a burden that ordinarily requires the plaintiff to *629show that the defendant’s touching was not apparently consented to.” Dan B. Dobbs, et al., The Law of Torts § 34 (2d ed.). Yet the Supreme Court of Virginia has reversed a demurrer dismissing a battery claim where the precise scope of the consent was at issue, ie., where plaintiffifoot-ball player affirmatively alleged he had not consented to being tackled by his adult coach and had no prior notice that such tackling would occur. Koffman v. Garnett, 265 Va. 12, 17, 574 S.E.2d 258, 261 (Va.2003).

Construing the facts and inferences in Plaintiffs favor, the Court is not convinced that Plaintiffs arrival at the Swim House establishes as a matter of law that he consented to all the subsequent touching. Even if his appearance manifested consent to some activities, the scope of that consent is clearly at issue. Further, to the extent his continued presence at the Swim House was consent in a colloquial sense, numerous allegations (see, e.g., Compl. ¶¶ 26 (ix), (xxxi), 31) show it was coerced and thus not legal consent under Gnadt and King.8

3. False Imprisonment

“False imprisonment is the restraint of one’s liberty without any sufficient legal excuse.” Lewis v. Kei, 281 Va. 715, 724, 708 S.E.2d 884, 890 (Va.2011); Parker v. Austin, 105 F.Supp.3d 592, 604-05 (W.D.Va.2015). “If a person is under a reasonable apprehension that force will be used unless he willingly submits, and he does submit to the extent that he is denied freedom of action, this, in legal contemplation, constitutes false imprisonment.” Zayre of Va., Inc. v. Gowdy, 207 Va. 47, 51, 147 S.E.2d 710, 713 (Va.1966); Zaklit v. Global Linguist Solutions, LLC, 53 F.Supp.3d 835, 846 (E.D.Va.2014) (denying motion to dismiss where defendants threatened plaintiffs with arrest for attempting to leave confined area).

Only Defendant Rommel provides extended argument on this Count, although Pearce and Ingraham adopt Rommel’s position by reference. In addition to arguing the facts are insufficient, Rommel asserts that the “Complaint sets out no real reason that Plaintiff believed he could not leave, and certainly no reason attributable to Rommel.” But the Complaint does allege — in addition to many, more general allegations that constitute false imprisonment by Defendants — that Defendant Rommel “slammed the door shut” of the bathroom that Plaintiff was in and which had all other methods of escape closed off. Compl. ¶¶ 26(xvii), (xviii), (xxiii). Plaintiff also rightly responds to Rommel’s argument by citing Zaklit for the proposition that submission in the face of a reasonable apprehension of force suffices for imprisonment. Whether based on Zaklit, the fact that Plaintiff was shut in the bathroom, or any of the other allegations suggesting that Plaintiff felt he could not freely leave the Swim House on account of Defendants’ actions, the Complaint states a claim for false imprisonment.

4. Hazing

In Virginia, it is “unlawful to haze so as to cause bodily injury, any student at any school, college, or university.” Va. Code § 18.2-56. Hazing means:

*630to recklessly or intentionally endanger the health or safety of a student or students or to inflict bodily injury on a student or students in connection .with or for the purpose of initiation, admission into or affiliation with or as a condition for continued membership in a club, organization, association, fraternity, sorority, or student body regardless of whether the student or students so endangered or injured participated voluntarily in the relevant activity.

Id. Hazing is a criminal misdemeanor, but “[a]ny person receiving bodily injury by hazing shall have a right to sue, civilly, the person or persons guilty thereof.” Id. (emphasis added).9 Only two cases to date cite the statute, neither of which is illustrative here. Guerrero v. Deane, 750 F.Supp.2d 631, 658 (E.D.Va.2010) aff'd sub nom. Guerrero v. Moore, 442 Fed.Appx. 57 (4th Cir.2011), cites the statute when discussing battery. Givens v. O’Quinn, 121 Fed.Appx. 984 (4th Cir.2005), involved an assault on plaintiff by two co-workers with the Department of Corrections and merely referenced the definition in an inapplicable context.

Defendants’ central argument— made most comprehensively by Defendant Pearce — is that Plaintiff did not suffer any “bodily injury.”10 Although that term is undefined in the statute, it is used elsewhere in the Virginia Code as part of the malicious wounding law. Va. Code § 18.2-51. The parties agree that the Court should look to caselaw interpreting the term in that context.

Defendant Pearce contends that any emotional trauma, fear, humiliation, or disorientation Plaintiff felt did not constitute bodily injury, and the Court agrees. He further asserts that vomiting — which Plaintiff endured after being forced by Defendants to drink copious amounts of milk and prune juice — is merely a bodily “reaction,” not a bodily injury. Despite its initial appeal, this view is incorrect.

Courts give “bodily injury” its “everyday, ordinary meaning,” including “’any detriment hurt, loss, impairment’ that could fairly be considered an injury to the human body.” English v. Virginia, 58 Va.App. 711, 718-19, 715 S.E.2d 391, 395 (Va. Ct.App.2011). The “victim need not experience any observable wounds, cuts, or breaking of the skin,” nor “offer proof of broken bones or bruises.” Id. at 719, 715 S.E.2d at 395. “Bodily injury comprehends, it would seem, any bodily hurt whatsoever.” Id. at 718, 715 S.E.2d at 395 (emphasis added). Simply put, vomiting certainly en*631tails bodily hurt. Chilton v. Commonwealth, No. 1531-13-3, 2014 WL 6428394 (Va.Ct.App. Nov. 18, 2014), is also illustrative. There, the Virginia Court of Appeals reversed a strangulation conviction for lack of “bodily injury.”

[The victim] neither sought nor required medical attention, displayed no evidence of visible bruising or cuts, suffered no residual effects following the altercation, did not take or require medication, and did not testify to suffering any type of pain or stiffness at the time of the altercation.

Id. at *4 (emphasis added). This conclusion comports with the statement in English that suffering contemporaneous bodily pain or hurt constitutes bodily injury. Read liberally, then, one can infer from the Complaint that Plaintiff “suffered pain” and thus sustained bodily injury when he vomited.11

5. Tortious Interference with Contractual Relations

This tort requires showing “(1) the existence of a valid contractual relationship or business expectancy; (2) knowledge of the relationship or expectancy on the part of the interferor; (3) intentional interference inducing or causing a breach or termination of the relationship or expectancy; and (4) resultant damage to the party whose relationship or expectancy has been disrupted.” Chaves v. Johnson, 230 Va. 112, 120, 335 S.E.2d 97, 102 (1985). Plaintiffs conception of this claim appears to be: he had a contract to attend and swim at UVA; after he discussed the events at the Swim House with his coach, his teammates viewed him as a “rat”; his coach become concerned for his safety and had him practice apart from the team (al-though he remained on the team), and; eventually, Plaintiff left UVA (and by necessity the swim team). See Compl. ¶¶ 36-40; dkt. no. 47 at 10-12. Defendants contest the first, third, and fourth elements. The Court agrees that Count V has multiple shortcomings. The personal tort claims involved here are not a proper contractually-based business tort.

a. Contract or business expectancy

Defendant Dudzinski argues that Plaintiff has not pled the existence of a contract or its terms. In response, Plaintiff claims “he had a contract to attend UVA, swim on its Varsity swim team, and study.”

As a threshold matter, courts in Virginia are hesitant to find that the sorts of documents on which the Complaint relies— student handbooks, university policies, and codes of conduct — create a contract. Doe v. Washington & Lee Univ., No. 6:14-CV-00052, 2015 WL 4647996, at *11 (W.D.Va. Aug. 5, 2015) (compiling cases); see Dodge v. Trustees of Randolph-Macon Woman’s Coll., 276 Va. 1, 6, 661 S.E.2d 801, 803 (Va.2008) (holding various documents from university did not include contractual promise that it would not become co-educational). Additionally, the “terms of the contract must be clear, definite, and explicit,” Dodge, 276 Va. at 5, 661 S.E.2d at 803, and, as Defendants Dudzinski and Pearce point out, the Complaint alleged only in conclusory terms that Plaintiff had a contract with UVA to “come to UVA to study and to swim on its Varsity swim team.” Compl. ¶¶ 20, 40. There is no explication of the length of the contract, its substantive content or terms, or when it was terminated. In short, a contract and its terms have not been adequately pled.

*632At oral argument, Plaintiff stated that his business expectancy was that of becoming a professional swimmer, which would be aided by attended a “swimming school.” This theory was in neither the Complaint (which summarily alleged in Paragraphs 20, 40, and 54 a contract with UVA) nor Plaintiffs brief (which proclaimed the same). Moreover, the hope of becoming a professional athlete is too attenuated and too vague to serve as a basis for the first element, much less causation,

b. Intentional interference causing breach

Defendant Dudzinski challenges causation, observing that “there are no allegations that allow one to infer how the defendants’ actions caused or induced plaintiff to be unable to continue to study and swim at UVa” or “identifying which party to the contract — UVa or [Plaintiff] — may have actually breached the contract, or which provision(s) may have been breached.” As the Complaint alleges at Paragraph 40, Plaintiff “left the school,” not that UVA breached any alleged contract due to any actions by Defendants. In Defendant Rommel’s words, “[njothing in the Complaint indicates that [UVA] barred [Plaintiff] from swimming or competing;” rather, Plaintiff “chose to leave the UVA Swim Team.” Because “a plaintiff cannot interfere with [his] own contract,” CVLR Performance Horses, Inc. v. Wynne, 977 F.Supp.2d 598, 603 (W.D.Va.2013) (citing Fox v. Deese, 234 Va. 412, 427, 362 S.E.2d 699, 708 (Va.1987)), this element fails as well. Even assuming one could reasonably infer from the Complaint that UVA breached the hypothetical contract, attributing the cause of that breach to Defendants is not supported by the Complaint. At most, Defendants merely subjected Plaintiff to social hostility and ostracism because they thought he was a “rat”; there is no indication that Defendants conveyed that view to UVA’s coach, or that they otherwise tried to convince anyone with the power to remove Plaintiff from the team or school to do so. Indeed, it was Plaintiffs parents, not Defendants, who told the coach that Defendants viewed Plaintiff as a rat. Compl. ¶ 37.

c. Resulting damage

Plaintiff does not respond to Defendants’ contention that the Complaint lacks allegations about how or to what degree he suffered damages. (Compare dkt. no. 35 at 9 and dkt. no. 39 at 11 with dkt. no. 47 at 10-12). The Complaint, in Paragraph 55, contains only a recital that “Plaintiff has suffered damages” from the conduct at issue.

6. Intentional Infliction of Emotional Distress

The elements of intentional infliction of emotional distress (“IIED”) are: “[1] the wrongdoer’s conduct is intentional or reckless; [2] the conduct is outrageous and intolerable; [3] the alleged wrongful conduct and emotional distress are causally connected; and, [4] the distress is severe.” Russo v. White, 241 Va. 23, 26, 400 S.E.2d 160, 162 (Va.1991). IIED claims are disfavored in Virginia. Supervalu, Inc. v. Johnson, 276 Va. 356, 370, 666 S.E.2d 335, 343 (Va.2008); Williams v. Agency, Inc., 997 F.Supp.2d 409, 414 (E.D.Va.2014); Nelson v. Green, 965 F.Supp.2d 732, 752 (W.D.Va.2013). The Court assumes without deciding that the first three elements are satisfied. The fourth element is not met here.

In Russo, plaintiffs allegations that she suffered stress, nervousness, and sleeplessness did not qualify as severe distress. 241 Va. at 28, 400 S.E.2d at 163; see Harris v. Kreutzer, 271 Va. 188, 205, 624 S.E.2d 24, 34 (Va.2006) (allegations of “nightmares, difficulty sleeping, extreme loss of self-esteem and depression,” and *633subsequent counseling did not state claim); Dixon v. Denny’s, Inc., 957 F.Supp. 792, 796 (E.D.Va.1996) (feeling “fearful and degraded” and suffering “headaches and vomiting” does not satisfy fourth element). The Complaint alleges Plaintiff suffered only the types of distress — e.g., fear, disorientation, shame, humiliation, deliriousness — that fail as a matter of law. Defendants Pearce, Dudzinski, and Papendick provided extensive argument on this issue. Plaintiffs brief — while recounting the factual allegations at great length — lacks any argument on the “severity” element, asserting only that there was “emotional distress [that] was severe.” Thus, the Court has not found any cases contrary to the authorities provided by Defendants showing that, a fortiori, the allegations here fail. As Defendant Dudzinski’s reply (dkt. no. 56 at 3) summarizes, “Plaintiff does not — and, indeed, cannot — point to allegations in the Complaint of even the barest symptoms of emotional distress.” The IIED claim must be dismissed.12

7. Punitive Damages13

Count VII is for punitive damages, which are “awarded only in cases of the most egregious conduct.” Philip Morris, Inc. v. Emerson, 235 Va. 380, 407, 368 S.E.2d 268, 283 (Va.1988). “A claim for punitive damages at common law in a personal injury action must be supported by factual allegations sufficient to establish that the defendant’s conduct was willful or wanton.” Woods v. Mendez, 265 Va. 68, 76, 574 S.E.2d 263, 268 (Va.2003). Such damages “are allowable only where there is misconduct or actual malice, or such recklessness or negligence as to evince a conscious disregard of the rights of others” Condo. Servs., Inc. v. First Owners’ Ass’n of FoHy Six Hundred Condo., Inc., 281 Va. 561, 579, 709 S.E.2d 163,174 (Va.2011). The Court finds that the facts alleged would be sufficient to infer actual malice by Defendants toward Plaintiff, or that they consciously disregarded his rights.14

*6348. Common Law Conspiracy

“Under Virginia law, the elements of a common law civil conspiracy are (i) an agreement between two or more persons (ii) to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means, which (iii) results in damage to plaintiff’ through an overt action done pursuant to the agreement. William v. AES Corp., 28 F.Supp.3d 553, 574 (E.D.Va.2014); Skillstorm, Inc. v. Elec. Data Sys., LLC, 666 F.Supp.2d 610, 618 (E.D.Va.2009). There must also be an underlying tort committed. William, 28 F.Supp.3d at 574. Defendants — particularly Defendant Rommel — argue that there are insufficient facts to support an agreement or unity of purpose. Specifically, it is claimed that the Complaint contains “con-clusory allegations” of mere “parallel conduct.” (Dkt. no. 43 at 10-13). To the contrary, the Complaint does provide enough factual material on this issue.

The Complaint specifically alleges that all Defendants, by name, conspired together to draft and send the Mr. Mean emails regarding Welcome Week. The content of those emails is then recounted in detail. Not coincidentally, Defendants Dud-zinski and Papendick earlier mentioned to Plaintiff and the other first-years that Welcome Week would take place. And when Plaintiff arrived at the Swim House for Welcome Week as instructed by Mr. Mean, Defendants behaved in a manner one would expect from the creators of that crass persona, even making unique threats — e.g., the “dry-ice dildo” treatment — contained in the emails that would only have been known to its authors. All of this shows that, as alleged, Defendants worked together to send the Mr. Mean emails, knew their content and plan, and orchestrated and directly participated in the Swim House ritual. Furthermore, the Complaint alleges that Defendants “were the organizers” of the Swim House event who “instigated” a slew of allegedly tor-tious activity, described in detail. Compl. ¶ 26. And the events inside the Swim House were not “spontaneous, parallel action” caused by partygoers who “got out of hand,” as Rommel claims. Rather, it took significant time, effort, and planning for Defendants to, among other things, procure buckets to place on the first-years’ heads; obtain large containers of alcohol and other liquids to be consumed; duct-tape shut or block all exits or drains of the bathroom in which Defendants would falsely imprison Plaintiff; draft detailed and embarrassing questionnaires; compile a scavenger hunt list; and purchase goldfish ignominiously condemned to death-by-mastication. Compl. ¶¶ 26(vii), (xvii), (xxv)(xxvii), (xlv)-(xlvi), (xlvii); see Dante Alighieri, Inferno, canto XXXIV: All told, the facts alleged are sufficient to establish a common law civil conspiracy.

9. Statutory Conspiracy under Va. Code §§ 18.2-499 & -500

By statute, “two or more persons who combine, associate, agree, mutually undertake or concert together for the purpose of ... willfully and maliciously injuring another in his reputation, trade, business or profession by any means whatever” are jointly and severally guilty of a misdemeanor. Va. Code § 18.2-499(A)(i). “Any person ... injured in his reputation, trade, business or profession by reason of [such] a violation of § 18.2-499” has a private right of action for treble damages and the costs of the suit, including reasonable attorneys’ fees. Va. Code § 18.2-500.

■ “Despite its broad language, it is well-settled that this statute applies only to injuries ‘to business and property interests, not to personal or employment interests.’” Shirvinski v. U.S. Coast Guard, 673 F.3d 308, 321 (4th Cir.2012) (quoting An*635drews v. Ring, 266 Va. 311, 585 S.E.2d 780, 784 (Va.2003)) (dismissing tort claim “cloaked” as a business conspiracy).

In an unbroken line of federal district cases, ... the federal district courts in Virginia have consistently held that a right of action is afforded [under these statutes] only when malicious conduct is directed at one’s business, not one’s person, and that the statute focuses upon conduct directed at property, i.e., one’s business and applies only to conspiracies resulting in business-related damages.

Buschi v. Kirven, 775 F.2d 1240, 1259 (4th Cir.1985) (emphasis in original, internal quotations, citations, and footnotes omitted); see Warner v. Buck Creek Nursery, Inc., 149 F.Supp.2d 246, 267 (W.D.Va.2001) (“In order to state a claim under Section 18.2-499, courts have held that the conspiracy must be one to injure the plaintiff ’in his business.’”).

Perhaps for this reason, federal district courts in Virginia have required that a conspiracy under this statute be pled, like fraud, with particularity (which has not been done here). E.g., Schlegel v. Bank of Am., N.A., 505 F.Supp.2d 321, 329 (W.D.Va.2007) (quoting Gov’t Employees Ins. Co. v. Google, Inc., 330 F.Supp.2d 700, 706 (E.D.Va.2004)). Courts have reduced the elements of this claim to “(1) concerted action between two or more people; (2) legal malice towards Plaintiffs business; and (3) that the conspiratorial actions caused Plaintiffs business damages.” Jaggars v. Sandy Spring Bank, No. 6:14-CV-00015, 2015 WL 1648556, at *2 (W.D.Va. Apr. 14, 2015) (quoting Rogers v. Deane, 992 F.Supp.2d 621, 635 (E.D.Va.) aff'd, 594 Fed.Appx. 768 (4th Cir.2014)); see Multi-Channel TV Cable Co. v. Charlottesville Quality Cable Operating Co., 108 F.3d 522, 526 (4th Cir.1997).

Plaintiff alleges that Defendants’ actions injured him in “his business and property” by causing the “destruction of [his] valuable swim contract with UVA.” Compl. ¶ 69. But Plaintiff fails to respond to Defendants’ arguments that this allegation is legally insufficient.15' Defendant Dudzinski (and to a lesser extent Rommel) rely on Shirvinski and Warner, supra, in urging that Plaintiffs claim involves merely a personal interest, not a business 'one. The Complaint bears this out: Besides the conspiracy counts, Plaintiffs claims and the underlying conduct sound in torts of personal injury, not business harm. In Shirvinski, the Fourth Circuit observed that “because injury to personal reputation ordinarily causes damage to one’s business or profession, nearly every defamation action would fall within the statute’s ambit if we permitted such claims to proceed.” 673 F.3d at 321. But “Virginia’s business conspiracy statute was not designed to provide treble damages for defamation suits cloaked as conspiracy claims.” Id. Similarly, nor was it designed to provide treble damages for the personal injury torts alleged here.

Dudzinski also contends that “an athletic financial aid agreement is not a business or property interest” under the statute. Cases widely hold that college athletic scholarships and participation in collegiate athletics are not cognizable property interests. 16 E.g., Equity in Athletics, Inc. v. *636Dep’t of Educ., 675 F.Supp.2d 660, 680-81 (W.D.Va.2009) (compiling cases holding that participation in collegiate athletics is a privilege, not a property right, and finding no support in Virginia to the contrary) aff'd, 639 F.3d 91, 109 (4th Cir.2011); Spath v. NCAA, 728 F.2d 25, 29 (1st Cir.1984) (rejecting assertion that scholarship provided a contractual property interest in playing hockey).17 And as discussed regarding the tortious interference with contract claim, the Complaint lacks the necessary details about the alleged interest harmed (ie., the purported UVA contract, its terms, and when it was terminated) and suffers from a failure of causation.

Finally, Defendant Pearce builds on his co-Defendants’ positions by arguing that Plaintiffs so-called “swim contract with UVA” was, at most, a future business interest that is not cognizable under the statute. Warner, 149 F.Supp.2d at 267-68 (compiling cases and holding that “unspecified future business endeavor” is not sufficient). For instance, Plaintiff alleges he “was going to use his college training as a basis for swimming professionally or even try to compete in the Olympics,” so his school choice would “greatly impact those possible professional pursuits” and “determine if he would- swim professionally after he graduated.” Compl. ¶ 16 (emphasis added). This also comports with Plaintiffs description at oral argument of his tortious interference claim, which he asserted was built upon attending a “swimming school” to springboard him into the professional ranks. To the extent, then, that Plaintiffs alleged business interest is not simply his “swim contract” with UVA but the hope of becoming a professional athlete, it is a future business interest that is not cognizable.

10. Negligence

Defendant Rommel seeks dismissal of the negligence count. His sole argument is the assertion that the Complaint provides no facts showing he “violated some common law duty as to Plaintiff so as to constitute negligence.” This passing mention of Count X is insufficient to place the issue before the Court, and in any event the Complaint contains ample facts to state a negligence claim.

III. Plaintiff’s Request for Leave to Amend

At the end of his response brief, Plaintiff appended a request for leave to amend his *637Complaint if any count is dismissed. Plaintiff cites the “federal rule policy” of deciding eases on the merits and allowing “at least one amendment regardless of how unpromising the initial pleading appears.” Ostrzenski v. Seigel, 177 F.3d 245, 253 (4th Cir.1999). Defendants oppose this request, with Defendant Dudzinski doing the heavy lifting. He argues that leave to amend should not be granted on Counts II (battery), V (tortuous interference with contract), VI (intentional infliction of emotional distress), and IX (statutory conspiracy) on the grounds of futility.

Ordinarily, Rule 15(a)(2) would permit amendment upon “the court’s leave,” which should freely be given “when justice so requires.” However, the Court’s pretrial order of July 29, 2015 provides that any such motion must be filed within 45 days from that date “[ejxcept for good cause shown.” (Dkt. no. 14 ¶ 24). That deadline expired over three months ago, on September 14, 2015.

When a motion to amend the complaint is filed “after the deadline set by the scheduling order for amending pleadings, Federal Rule of Civil Procedure 16(b) applies [not Rule 15(a)(2) ]. Under Rule 16(b) a motion to amend a complaint filed after a scheduling order deadline shall be granted only upon a showing of ’good cause.’” Montgomery v. Anne Arundel Cnty., Md., 182 Fed.Appx. 156, 162 (4th Cir.2006); see Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir.2008); Wooton v. CL, LLC, 504 Fed.Appx. 220, 223 (4th Cir.2013). “Rule 16(b)’s good cause standard emphasizes the diligence of the party seeking amendment.” RFT Mgmt. Co., LLC v. Powell, 607 Fed.Appx. 238, 242 (4th Cir.2015).

Because Plaintiff has filed neither (1) a proposed amended complaint which the Court could assess for futility nor (2) a formal motion attempting to make the required showing under Rule 16(b), leave to amend will not be given as a matter of course. The Court will not speculate whether a hypothetical amended complaint would be futile, or'whether the good cause standard is met. The former point is especially salient given that some of Plaintiffs claims have been found to rest on faulty legal grounds and not mere pleading defects. Regardless, without prejudging the matter should Plaintiff subsequently submit a formal motion and proposed amended complaint, the instant request for leave to amend will be denied.

CONCLUSION

For the foregoing reasons, Defendants’ motions to dismiss will be granted in part and denied in part. Plaintiffs request for leave to amend will be denied without prejudice to his right to seek amendment through a formal motion and proposed amended complaint. An appropriate order will issue. The Clerk is requested to circulate a copy of this opinion to all counsel of record.