EXAM TIPS

Subjective test:  Remember 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 enough:  Also, “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 intended:  Contact of a “different sort” than intended can suffice.

Example:  D 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 means:  The contact can be by indirect means, i.e., not necessarily D’s person touching P’s person.

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

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

Example:  If 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 privilege:  Whenever a person seems to exceed a privilege, look for a possible battery.

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