Torts 1.2 – Battery
I. Specific Torts
i. Definition: The intentional touching of the person of another, causing harm or offense, without consent.
ii. Elements of Battery
- Some states: Intent to touch. (Example: In Vosburg v. Putney, Putney intended to lightly kick Vosburg's leg but not to harm him. In some states, Putney is still liable for battery.)
- Other states: Intent not only to touch but to harm or offend.
- Example: Blowing tobacco smoke (particulate matter) in someone else’s face, as in Leichtman v. WLW Jacor Communications.
c. “Person of Another”
- Includes another’s physical body, but also the things that are connected to them.
- Examples: Grabbing another’s jacket that they are wearing, knocking their hat off their head, hitting a cane that they’re holding, or striking a horse that they’re riding.
- Usual Test: Would a reasonable person be offended?
- But if the defendant knows that the plaintiff is unusually sensitive, then that sort of touch can be a battery, as well. (Example: Sneaking pork onto the plate of a religious Muslim or Jew, knowing they will be offended by consumption of pork.)
f. “Without Consent"
- Consent is a common issue of focus in battery cases.
- Examples: A patient consents to operation by one doctor but is actually operated on by a different doctor, or a blood donor receives a counterfeit bill in exchange for donating their plasma.
Intro to the Specific Tort of “Battery”
The first specific tort that we’re going to talk about in detail is (00:04)battery. Battery is (00:05) the intentional touching of the person of another, causing harm or offense, without consent. So, it’s important that you remember that definitionーthe intentional touching of the person of another, causing harm or offense, without consent. It’s also important to recognize that, in a lot of battery cases, simply knowing the definition of battery and what each of those terms mea, isn’t going to resolve the caseーthat there will be a lot of instances that really seem on the line.
Elements of Battery
Element #1: “Intent”
So, let’s go to the first element of battery (00:37)ー intent. Battery is an intentional touching of the person of another causing harm or offense. What do you need to intend?
Some States: “Intent to Touch”
Well, in some states, the answer is: all you need to do is (00:49) intend to touch.
Example of “Intent to Touch”: Vosburg v. Putney
There’s a canonical case, (00:52) Vosburg v. Putney, that you’ll almost certainly talk about in Tort Law. It’s a case from Wisconsin from the late 1880s. And there was a boy, George Putney, who was 11 years old, and he (01:03) kicks his classmate, 14-year-old Andrew Vosburg, in the leg. All he meant to do was to rattle Andrew Vosburg. He didn’t mean to harm Andrew Vosburg. But it just so happens that Andrew Vosburg had a condition that meant that this slight kick of his leg led him to ultimately lose the ability to use that leg for the rest of his life. Putney (01:26) didn’t intend that grave harm. All he intended to do was to lightly kick his neighbor in the classroom. And the court in Vosburg v. Putney says that doesn’t matter. As long as Putney intended to touch Vosburg, he’s liable for battery. He’s liable for the harm that followed.
Some States: Intent to Touch AND Intent to Harm or Offend
Not every state follows the rule of Vosburg v. Putney. Some states say you need to intend not only to touch, but (01:57) to harm or offend.
Element #2: “Touch”
So, what do we mean by (02:00) “touch"? Well, in most cases, that’s not very hard. If I touch you on the arm, if I kick you in the leg, that’s a touch, but sometimes it’s less clear.
Particulate Matter as “Touch"
So, there’s a case that you’ll likely read in Torts: Leichtman v. WLW Jacor Communications. It’s an Ohio case from 1994. And there, Leichtman is an anti-smoking advocate, and he goes on to a talk show in Cincinnati, and the talk show hosts decide it will be funny to blow cigar smoke in his face. And that’s all that happens. (02:32) The hosts blow cigar smoke into his face. And he sues for battery, and the court says yeah, he’s got a claim because tobacco smoke is (02:42) particulate matter and the particulate matter from the tobacco smoke touched Leichtman. No person put their hand on Leichtman, but that was enough for there to be a touch (for there to be a battery).
Element #3: “Person of Another”
So, battery is (02:57) the intentional touching of the person of another. What does it mean to touch (02:59) “the person of another”? Well, my arm, my leg, that’s clearly part of my person. But also if I (03:07) grab the breast of your jacket, that’s touching you (touching the person of you). (03:14) If I knock your hat off your head, that’s touching the person of you. (03:19) If I hit a cane that you’re holding, that’s touching the person of you. (03:23) If I strike the horse you’re riding, that’s going to count, as well. So, not just your actual body, but (03:29) things that are connected to you, as well. So, it’s the intentional touching of the person of another, causing harm or offense, without consent.
Element #4: “Harm”
Harm is a word that we’ve heard before. We know what it means to harm.
Element #5: "Offend”
What does it mean to “offend”? Well, normally we judge “offense” by: (03:45) would a reasonable person be offended?
Unusually Sensitive Plaintiff
But if the defendant knows that the plaintiff is (03:53) unusually sensitive, then that sort of touch can be a battery, as well. So, offending someone in a way that most people wouldn’t be offended but you know this person will, that’s battery.
Example of Unusually Sensitive Plaintiff and Pork
A classic example of this is if you (04:09) sneak pork onto the plate of a religious Muslim or Jew, knowing that they are a religious Muslim or Jew who will be offended by the consumption of pork, that’s battery. Even though, if you snuck pork onto the plate of other people who happily eat pork, that’s not battery.
Element #6: “Without Consent”
And lastly, there’s the question of: (04:30) what’s “consent”? Battery is the intentional touching of the person of another, causing harm or offense, without consent.
Examples of “Without Consent”: Switching Doctors & Counterfeit Money for Blood Donation
So, there’s a case that says: (04:39) if one doctor says he’ll operate on you and then another doctor ends up doing the surgery, your consent to the first doctor operating doesn’t count as consent to the second doctor operating. So, if the doctors switch places, that’s a battery. And if you (04:56) donate plasma (if you donate a part of your blood) and you’re paid with a counterfeit bill, that counts as battery, as well, because you wouldn’t have agreed to do it if you knew that the bill was counterfeit.
Obviously, in consent there will be a lot of difficult line-drawing questions. And much of the conversation in battery is going to be figuring out what is and what isn’t consensual.
Issues of “intent” and “consent” are a common focus in battery & trespass cases.
These concepts of (05:24) “intent” and (05:25)“consent” that are going to be the focus of much of the discussion in battery, they’re going to turn up in the other major intentional tort (trespass), as well.
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