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Example 2D uses non-deadly force against one who he thinks is an intruder on D’s property, but who is really the mail carrier. Again, that’s battery.

+      Medical malpractice or sports: In a medical malpractice or sports context, consider the possibility that there may be battery.

Example 1D is a doctor who fails to get the patient’s informed consent before performing a certain procedure; D may be found to have battered the patient.

Example 2P and D play a contact sport (so P impliedly consents to contacts that are within the usual practices or rules of the sport). D hits or tackles P on purpose, and outside of the rules; D probably has committed battery, by going beyond the scope of what P impliedly consented to.


*       Assault generally:  Look for an assault issue whenever you have a person who is put in “apprehension of an imminent harmful or offensive contact” by another person.

+      Definition to use:  If you have an assault issue, work the following definition into the beginning of your discussion of the issue: “Assault is the intentional causing of an apprehension of harmful or offensive contact.”

+      Combined with battery:  Anytime you have identified a battery, also consider whether there was first an assault – there usually was. As long as P saw was about to happen there’s an assault just before the battery.

Example:  If D swings at P’s jaw, there’s an assault just before the impact, as long as P saw D’s swing.

+      Intent:  Intent issues are sometimes tested in assault:

o       Two possible intents:  Remember that there are two distinct intents, either of which can suffice:

D intends to commit a battery, but fails; or

D intends to put P in apprehension, but not to really cause the contact (so that the intent is “attempt to frighten”).

o       Transferred intent:  “Transferred intent” operates in assault cases. Thus if D tries to frighten X (or to make a contact with X), and P thinks that he himself will be hit, then D has assaulted P even if D never intended any effect on P or even saw P.

+      Words-alone rule:  Remember the “words alone” rule – words alone can’t constitute an assault. But typically, the facts will show at least some small overt act, which will be enough.

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