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Fundamental Protections: The Tort of Battery

    To distinguish between such common, socially accepted contacts and actionable batteries, courts require that the defendant intend to cause either a harmful or an offensive contact. Harmful suggests broken arms, black eyes, and the like, but a great deal less will do. Section 15 of the Restatement (Second) of Torts defines bodily harm as “any physical impairment of the condition of another’s body, or physical pain or illness.” Of course, if the harm is minor, the plaintiff will recover very little, or be limited to nominal damages, but the courts will still have vindicated her right to physical autonomy.

    Even if the contact is not harmful, it is tortious if it is offensive. If Smith chucks Jones under the chin in a demeaning manner, or spits on her, she has caused an offensive contact. Allowing a battery suit for such offensive contacts not only deters such personal invasions, it also provides Jones with a civilized alternative to retaliation. Since offensive acts are particularly likely to provoke retaliation, it is appropriate to provide a battery remedy for such contacts instead.

    Of course, people don’t all react the same way to every contact. If Smith goes around slapping folks on the back at the office party, Jones may find it obnoxious, but Cimino may be flattered by the attention. If the definition of offensive contact depended on the subjective reaction of each plaintiff, Smith would not know whether her conduct was tortious until she saw the reaction to it. Smith should have some way of determining whether a contact is permissible before she acts. To allow such advance judgments, courts use an objective definition of offensive contact. The Second Restatement, for example, defines a contact as offensive if it “offends a reasonable sense of personal dignity.” Id. at §19.

    Under this test, a contact is offensive if a reasonable person in the circumstances of the victim would find the particular contact offensive. An actor is not liable under this definition for a contact that is considered socially acceptable (i.e., that would not offend a “reasonable sense of personal dignity”), even though the victim turns out to be hypersensitive and is truly offended. On the other hand, if she makes a contact that the reasonable person would find offensive, it is not a defense that she did not mean to give offense, or that she did not realize that the victim would be offended.

    What the reasonable person would find offensive varies greatly with the circumstances. Often a prior course of conduct between the parties indicates that they accept contacts that would ordinarily be considered offensive. Suppose that Burgess and Munoz routinely engage in horseplay at work, including backslapping, arm locks, bear hugs, and the like. A stranger would undoubtedly find such contacts offensive, but Burgess and Munoz expect these contacts from each other. Burgess would be justified, given their previous interactions, in inferring that Munoz will not find such contacts offensive, though they would offend the “reasonable sense of personal dignity” of a new employee.

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