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Fundamental Protections: The Tort of Battery

    Under this definition, an actor can possess tortious intent even though she bears the victim no ill will whatsoever. If Chu sees Jones walking along the street below and deliberately throws a bucket of water on her from a second-story window, it is no defense that she was simply emptying the scrub bucket and did not mean to offend Jones. In intentional tort terms, she intends those contacts that she is substantially certain will occur, as well as those she desires to see happen. Indeed, a battery can be committed with the best of motives. In Clayton v. New Dreamland Roller Skating Rink, Inc., 82 A.2d 458 (1951), for example, the defendant’s employee attempted to set the plaintiff’s broken arm, against her protests. While the employee was only trying to help, he knew (because the victim told him so) that she found the contact unwelcome, and consequently met the intent requirement for battery.


    Although intentional tort law requires a very specific type of intent, that standard may be met if the actor intends to commit a battery on one person and actually inflicts one on somebody else. Suppose, for example, that Chu throws a rock at Smith, hoping to hit her, but her aim is bad and she hits Lopez instead. Chu would argue that she cannot be held liable to Lopez, since she had no intent to hit hershe was aiming at Smith.

    Although Chu had no tortious intent toward Lopez in this example, she did have tortious intent toward Smith. In such cases, courts hold that the tortious intent to hit Smith transfers to Lopez. Restatement (Second) of Torts §16(2). Thus, where the actor tries to batter one person and actually causes a harmful or offensive contact to another, she will be liable to the actual victim.

    Obviously, transferred intent is a legal fiction created to achieve a sensible result despite lack of intent toward the person actually contacted. The rationale for the doctrine is that the tortfeasor’s act is just as culpable when her aim is bad as when it is good; it would be unconscionable if she were exonerated just because she hit the wrong person. Under transferred intent, she will be liable whether she hits her intended victim or someone else.

    The transferred intent fiction also allows recovery where the actor attempts one intentional tort but causes another. If, for example, Chu tries to hit Smith with a hammer but misses, placing Smith in fear of a harmful contact but not actually causing one, her intent to commit a battery suffices to hold her liable for assault. Conversely, if she tries to frighten Lopez by shooting near her, but the bullet hits her instead, she will be liable for battery even though she intended to commit an assault instead.


    Not all intentional contacts will support a claim for battery. It would make little sense to allow Jones to bring a battery suit against every subway passenger who jostled her during rush hour. This kind of contact is an accepted fact of city life. Similarly, if Smith taps Jones on the shoulder to tell her that she dropped a glove, it is reasonable for Smith to expect that this touching is acceptable to Jones, as it would be to most of us.

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