A woman was walking through a crowded park when a jogger brushed roughly against her shoulder without her consent, causing her to drop her phone, which broke on impact. She yelled after the jogger, feeling disrespected. The jogger turned around and sarcastically said, 'Tough luck—maybe I’ll do it again!' before running off. Which tort is the woman most likely to succeed in proving against the jogger?
Battery requires harmful or offensive contact with another person without consent. Here, the jogger physically brushed against the woman’s shoulder, which could qualify as offensive contact to a reasonable person standard. Although no intent to harm was explicitly mentioned, intent can involve circumstances showing the act was substantially certain to result in contact. Assault would require the apprehension of imminent harmful or offensive contact, which did not occur here because the contact had already taken place. Negligence would not apply because the jogger's conduct was intentional, not careless. Infliction of emotional distress requires extreme and outrageous conduct, which is lacking here.
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Can the jogger's sarcastic remark contribute to a claim of intentional infliction of emotional distress?