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Subjective testRemember that for “substantially certain,” the test is “subjective” – the issue is what D really thought, not what he “should” have thought, so even if an ordinary person would have realized that a harmful or offensive contact with P was nearly certain, D is protected if he didn’t realize this.

“Very likely” not enoughAlso, “substantially certain” doesn’t mean very likely” – it means “almost certain.”

o       Transferred intent“Transferred intent” is often tested – if D tries to make contact with (or frighten) X, and contact ensues with P, that’s enough for battery.

o       Different type of contact than intendedContact of a “different sort” than intended can suffice.

ExampleD tries to ram his car into P’s car, but P swerves into a fire hydrant – since P has come into contact with the fire hydrant, it doesn’t matter that this contact is different from the “ramming” contact intended by D; D is still liable for battery.

+      Definition of “contact”The nature of “contact” is often tested:

o       “Harmful” or “offensive”:  The contact can be either “harmful” or “offensive. An “offensive” contact means that as long as P’s dignity is harmed, no injury is necessary.

Example:  D pushes P while speaking nastily to him – even if there is no physical harm at all to P, there has been an “offensive” contact.

o       Indirect meansThe contact can be by indirect means, i.e., not necessarily D’s person touching P’s person.

ExamplesD throws an object at P, or hits P with his car, or lets loose an animal to attack P.

Mechanical devicesThe use of “mechanical devices” to protect property is often tested, and will typically involve battery unless the property owner had a privilege.

ExampleIf D puts a security system in his car that administers an electric shock to anybody who tries to touch the car, that’s a battery.

+      Exceeding a privilegeWhenever a person seems to exceed a privilege, look for a possible battery.

Example 1D tries to defend himself against an attack from P, but uses excessive force – D is liable for battery.

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