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Fundamental Protections: The Tort of Battery


Fundamental Protections: The Tort of Battery


The primitive world must have been a fairly scary place. Our ancestors had to cope not only with the awesome forces of nature, impossible to predict or control, but also with another unpredictable danger-other human beings. Doubtless, one of the primary reasons they decided to become “civilized” was to ensure physical security from each other.

Medieval England, from which our tort law evolved, sought to deter physical aggression through a criminal remedy, the “appeal of felony,” for physical assaults and other invasions of personal interests. Harper, James & Gray, The Law of Torts §3.1 (3d ed. 1996). If the defendant was found guilty, she would be fined; that is, she would have to pay a sum of money or forfeit her goods to the crown. The appeal of felony helped to enforce the King’s peace, but it did nothing to compensate the injured victim for her injury.

Over time, the English courts also developed civil tort remedies to compensate victims of physical aggression. This tort remedy differed according to the nature of the defendant’s invasion. For example, the tort of battery authorized damages for deliberate, unwanted contacts with the plaintiff’s person. Assault allowed recovery for placing the plaintiff in fear of an unwanted contact. False imprisonment was the remedy for unwarranted restraints on the plaintiff’s freedom of movement. This chapter examines the action of battery, that most basic of tort remedies for invasion of the most basic of personal rights, the right to freedom from unwanted bodily contact.

It seems as though this ought to be a very short chapter. Even the law, with its tendency to overanalyze, can only complicate a seemingly simple matter so much. And battery seems like a simple matter. Jones hits Smith: She has invaded Smith’s right to freedom from physical aggression and should be liable for any resulting injuries. All that is left to decide is how much Jones should pay.

Sometimes it is that simple, but often it is not. Jones may have bumped into Smith because Lopez pushed her, or she may have collided with Smith while jumping out of the way of an oncoming car. Perhaps she pushed Smith in order to prevent the car from hitting her, or while thrashing around in an epileptic seizure. Each of these cases involves an unauthorized contact with Smith, but Jones should not be required to compensate Smith for such blameless-or even helpful-invasions of Smith’s physical autonomy.

Since the courts have refused to condemn all unwanted contacts, they have struggled to craft a definition of battery that limits recovery to those types of contacts the law seeks to prevent. Most courts define battery as the intentional infliction of a harmful or offensive contact with the person of the plaintiff. See Restatement (Second) of Torts §13. Under this definition the defendant must act, her act must be intentional (in the restricted sense peculiar to tort law), the act must cause a contact with the victim, and the intended contact must be either harmful or offensive to the victim. These requirements are discussed in detail below.

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