Prosser, p. 29-34: “Battery


Case: Cole v. Turner


Restatement (Second) of Torts (1965)


This restatement is different from what Chief Justice Holt said.  Here, battery is defined as action with intent to touch someone and cause harm or offense or the apprehension of harmful or offensive contact; plus, the harmful contact actually happens, but not necessarily as a direct result of that action.  Wacky!


Oh wait, there’s more.  If the batterer acts intending to cause…the same stuff as before…and offensive contact directly or indirectly results, then you have battery.  But, if the act was done without intent, you’re not liable for battery just for offensive contact.  It says you might be negligent or reckless, though.


Oh crap, I almost missed it…if the intent was to cause harm or offense to a third person, and the person misses and hits somebody else…still battery!


Notes and Questions


  1. One big change is that it’s not merely any contact, but harmful or offensive contact that counts toward battery.  Also, there can be somewhat of a disconnect between the intent of the act and the result of the act.  E.g. if you were attempting to touch the person in touch a way as to harm them, but ended up merely touching them in an offensive way, that’s still battery.
  2. The idea here is if you give someone a noogie and fracture their skull in the process, you’re liable for fracturing their skull even if there was no reasonable expectation of that level of harm.
  3. I don’t think this would qualify as battery because there was no intent to cause harmful or offensive contact or apprehension of the same.
  4. Sure, if the defendant is trying to help the plaintiff, then again, there is no intent to cause harmful or offensive contact, etc.
  5. I understand why this is an open question.  The Restatement doesn’t say who should be the judge of what is harmful or offensive.  If the defendant acted to cause contact that he/she knew the plaintiff considered offensive or harmful, you could argue that it is battery because the defendant is doing something that he/she knows will cause the plaintiff psychic discomfort.  On the other hand, if I sincerely believe that I am causing non-harmful, non-offensive contact, maybe I would argue the prohibition is not reasonable.
  6. Based on the Restatement, it appears that such a battery is possible because the plaintiff’s awareness never enters into it.  If their being unaware makes the contact not offensive or not harmful, it could make a difference.  So if Sleeping Beauty found being kissed by Prince Charming to be offensive after the fact, I think she would have a cause of action (if it’s the plaintiff who determines what’s offensive).  If she didn’t find it harmful or offensive (including the sheer fact it was done while she was out of it), then the Prince wouldn’t be liable for battery…assuming he meant well.  As far as the unauthorized operation goes, again, the difference seems to be whether the plaintiff finds the operation offensive, and if it was meant to be offensive.
  7. I think this one rests on intent.  It would matter whether or not you knew you were infected and contagious.  Sexual activity when you’re contagious with an STD could well be considered harmful contact.  I don’t know whether it would matter if you had sex because you wanted to harm the other person.  You can say with sexual activity that you intended to act to cause a contact, and on top of that the contact was harmful, but I don’t know if that adds up to harmful contact as in the Restatement.
  8. Ooooh…hmmm.  I don’t think a dead body can intend anything.  I suppose the executor of the estate of the deceased or whoever it is that got the body into the mortician’s hands without telling him or her it was infected might intend to cause harm.  Or again, to cause some contact which incidentally is harmful.  There’s probably a bunch of cases that make these distinctions.  The action could only be against someone capable of the intention of causing contact with the body.  I don’t know if there is a cause for action only if the mortician contracts HIV, or if the Mortician is merely exposed to HIV, risks contracting it.  As for the dentist, I think you’d have a much better case for negligence, but if you wanted to go for battery, it would again hinge on whether it was that the dentist intended to cause contact (he certainly did) that was harmful or offensive (maybe)…versus the dentist intended to cause harm through the contact.


Case: Fisher v. Carrousel Motor Hotel, Inc.


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