Day on Torts
Lawyer Mark Lambert , an attorney with the Cochran Firm in Memphis, has been sued by Greg Herbers, a Memphis hair stylist, over injuries Herbers says he received in an alteration with Lambert in the bathroom of a Memphis bar.
According to the story in the Commercial Appeal, Herbers
entered the restroom around 9 p.m. and noticed the one stall was occupied by two men "performing some activity other than going to the bathroom." Herbers said that when he told the men he needed to use the toilet, Lambert, who was standing at the urinal but appeared to know the men in the stall, became aggressive. Lambert allegedly approached Herbers in a "menacing" fashion and jumped on him, grabbing his head and clawing at his neck. Herbers said the next thing he felt was excruciating pain. He heard teeth crunch and noticed blood pouring from his left nostril.
The newspaper article reports that Lambert and the two men in the stall fled the bathroom and the scene.
In a phone interview with Action News 5, a Memphis television station, Lambert said he only acted in self-defense after Herbers physically assaulted him for no reason. Lambert admitted to biting off part of Herbers’ nose, but says he spit it out and didn’t swallow it. You can see the news report and photographs of the injuries here.
As a warning to those who might be inclined for whatever reason to bite another person, I am quite sure that Lambert was surprised to learn that Herbers is HIV-positive. Friendly medical advice from a person who is not a doctor: do not bite and draw blood from someone who is HIV-positive.
The Dish in Cooper-Young is the bar where the incident occurred. Cooper- Young is a neighborhood in the Midtown section of Memphis.
I cannot put my hands on a copy of the complaint but it certainly alleges the tort of battery at the very least. A battery is an intentional act that causes an unpermitted, harmful or offensive bodily contact. Doe v. Mama Taori’s Premium Pizza, LLC, No. M1998-00992-COA-R9-CV, 2001 WL 327906 (Tenn. Ct. App. April 5, 2001). Biting someone certainly qualifies as battery.
Self-defense is a complete defense to a civil action for battery in Tennessee. Persons are entitled to use force to defend themselves only as long as the threat of injury exists and may use only such force as is necessary to defend themselves. Poliak v. Adcock, No. M2000-02325-COA-R3-CV, 2002 WL 31109737 (Tenn. Ct. App. Sept. 24, 2002). In this case, the burden of proving that defense will be on Mr. Lambert.
For reasons unknown to me, these cases are not available on Google Scholar. The cited cases and other cases are discussed in Chapter 5 of my book, Day on Torts: A Handbook for Tennessee Tort Lawyers 2009.