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
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,
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
Notes and Questions
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.
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.
- 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.
if the defendant is trying to help the plaintiff, then again, there is no
intent to cause harmful or offensive contact, etc.
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
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.
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.
- 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.
v. Carrousel Motor Hotel, Inc.
Back to Casebook Notes