Torts 1.2 – Battery
The first specific tort that we're gonna talk about in detail is battery.
DefinitionIntentional touching of the person of another causing harm or offense without consent
Battery is the intentional touching of the person of another causing harm or offense without consent. So it's important that you remember that definition, 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 mean, isn't going to resolve the case, that there will be a lot of instances that really seem on the line.
IntentIntent to touch enough; varies across states
So let's go to the first element of battery, intent. Battery is an intentional touching of the person of another causing harm or offense. What do you need to intend? Well, in some states, the answer is all you need to do is intend to touch. There's a canonical case, Vosburg versus 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 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 Vosberg, but it just so happens that Andrew Vosberg 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 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 versus 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. not every state follows the rule of Vosburg versus Putney. Some States say you need to intend not only to touch, but to harm or offend.
TouchNot just actual body, things connected as well; varies across states
So what do we mean by 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.
So there's a case that you'll likely read in torts, Leichtman versus WLW Jacor Communications It's an Ohio case from 1994. And there Leichtman is an antismoking 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. 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 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.
So battery is the intentional touching of the person of another. What does it mean to touch the person of another? Well, my arm, my leg, that's clearly part of my person, but also if I grabbed the breast of your jacket, that's touching you, touching the person of you. If I knock your hat off your head, that's touching the person of you. If I hit the cane that you're holding, that's touching the person of you. If I strike the horse that you're riding, that's gonna count as well. So not just your actual body, but things that are connected to you as well. So it's the intentional touching of a person of another causing harm or offense without consent.
Harm/OffendEven harm to unusually sensitive person covered
Harm is a word that we've heard before. We know what it means to harm. What does it mean to offend? Well, normally we judge offense by, 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. So offending someone in a way that most people wouldn't be offended, but you know this person will, that's battery.
A classic example of this is if you sneak pork onto the plate of a religious Muslim or Jew, knowing that they're 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.
And lastly, there's the question of what's consent? Battery is the intentional touching of a person of another causing harm or offense without consent. So there's a case that says, 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 switched places, that's a battery. If you 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. These concepts of intent and consent that are gonna 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.
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.
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