Torts Evening- Fall 2007
Professor Ralph Brill
Substantive Reviews
Substantive Reviews

The first intentional tort we examined was the ancient tort of battery. The underlying policy of this tort is to protect one's personal dignity. It applies when a defendant intentionally causes harm to plaintiff, but it also protects offensive physical contacts that do not cause plaintiff to suffer any physical damage.

We determined that this tort had the following elements: Defendant commits a battery to plaintiff if defendant:

∙ Intentionally
∙ Caused
∙ Harmful Contact
∙ or Offensive Contact
∙ To The Plaintiff's Person, or
∙ To Some Logical Extension of the Plaintiff's Person,
∙ Without Consent or Other Privilege

The first element, Intent, is discussed in full in another section of this Review section. This element necessitates a finding that defendant either acted for the purpose of causing a harmful or offensive contact to plaintiff (or some extension of plaintiff's person), or at least knew to a substantial certainty that such contact would occur.

Motive is irrelevant. One may be liable for a battery even if one is attempting a playful joke, or even if one is trying to help the plaintiff. A doctor who performs an unauthorized operation or treatment commits a battery even if the doctor was trying to cure the patient's condition; the owner of a skating rink who tried to set the broken bone of an injured skater, over the skater's objection, is liable for a battery even though the owner had the best interests of the plaintiff in mind in acting.

The second element is causation. This is factual causation. The defendant must cause the plaintiff to suffer harmful or offensive contact.

∙ The usual test for causation in fact is whether, “but for” the defendant's action, the plaintiff would have suffered the harmful or offensive contact.

∙ In the most typical case, this will be a direct contact by the defendant to the plaintff, as, for example, when defendant punches the plaintiff in the face with defendant's fist; there is a direct contact by the defendant with plaintiff's person.

∙ But the concept of causation includes setting in motion some force or object that eventually makes contact with plaintiff's person. So, in another typical case, the defendant fires a bullet at plaintiff; he causes the bullet to strike the plaintiff. Or, Defendant strings a hidden line in plaintiff's path, causing plaintiff to fall to the ground; he has caused plaintiff to have contact with the ground. (Remember, however, that this must be the desired consequence or Defendant must know it is substantially certain to must be intended).

∙ One can also cause contact indirectly, by removing some support which causes plaintiff to have contact with the ground or some other object. For example, Defendant kicks away the cane upon which plaintiff is leaning, causing plaintiff to fall.

∙ And causation is broad enough to cover situations in which several intervening steps occur before the contact occurs, such as when defendant intentionally frightens a horse upon which plaintiff is riding, causing the horse to bolt and jump over a fence, throwing plaintiff off into a ditch. The Defendant has set in motion forces that eventually cause Plaintiff to suffer a harmful or offensive contact.

The next element of the tort of battery requires that plaintiff suffer the intended harmful or offensive contact. These are alternative requirements -- either/or.

A “harmful contact” is self-explanatory. The plaintiff suffers a broken bone, or bruise, or more serious physical injury, or simply pain.

However, one needs to distinguish between the intent to cause the contact from the intent to cause the actual consequences; the latter is not required. Thus, if defendant lightly kicks plaintiff in the shin, intending to cause some minor pain and perhaps a small bruise, there is a battery when, due to some hypersensitivy or unique physical condition, plaintiff suffers far more serious consequences from the kick than an average person would suffer. One takes the plaintiff as one finds him/her, and becomes liable for all consequences proximately flowing from the completed harmful contact. The Defendant need not intend the ultimate consequences, but just the initial contact.

Alternatively, the defendant can be liable for intending to cause and for causing an “offensive contact.” Battery is a dignitary tort, and protects against invasions of one's bodily integrity. An unwanted kiss, while not phycially harmful, invades the bodily integrity of the plaintiff.

In general, the definition of an “offensive contact” would be determined by an objective standard, based on what kinds of contact society deems acceptable and what kinds of contact society would not. An unwanted kiss or caress is offensive, even if not harmful. But, there are many kinds of contact tolerated as part of living in a crowded society. A tap on the shoulder to ask a question, a bump in a crowded elevator or department store aisle, gently holding an acquaintance's arm to escort the person into a cab or through a slippery stretch of sidewalk would normally be tolerated by society's mores and not deemed offensive. However, while authority on the issue is sparse, it may be that if the defendant knows that a specific plaintiff has an idiosyncratic fear of certain kinds of otherwise tolerable touches, a defendant who knowingly violates the plaintiff's wishes and performs that kind of contact would be guilty of a battery.

The tort of battery may take place even though no part of plaintiff's person is actually touched. Again, battery is a dignitary tort. Thus, the tort is present if the defendant causes an offensive contact to clothing plaintiff is wearing, or objects that plaintiff is holding, or other objects which can legitimately be said to be logical extensions of plaintiff's personna. It may be difficult to draw lines here. If defendant angrily smashes the window of the car in which plaintiff is sitting, is this a battery? What if defendant smashes the headlight? Or kicks the rear trunk? The issue would be whether these are logical extensions of plaintiff's personna so that plaintiff could validly feel that by striking the object, defendant has invaded her/his personal bodily integrity. These actions undoubtedly constitute a tort, such as trespass to chattels, or conversion. But are they batteries?

There is no requirement that plaintiff be aware of the harmful or offensive contact. An unwanted kiss to a sleeping woman, or unauthorized surgery on an unconscious man, are batteries, even if the plaintiff does not realize they are taking place at the time.

The above-listed element “without consent or other privilege” is not clearly an element that the plaintiff has the burden of pleading and proving. Some courts will treat consent as a question of privilege, a defense, which the defendant must assert and bear the burden of proving. Most courts treat other privileges, such as self-defense, as matters for the defendant to plead and prove. Thus, review of these subjects will be delayed to a later section.