Battery (tort)

Battery is a form of trespass to the person and as such no actual damage (e.g. injury) needs to be proved. Only proof of contact (with the appropriate level of intention or negligence) needs to be made. An attempt to commit a battery, but without making actual contact, may constitute a tort of assault. The tort of battery developed out of a general judicial respect of an individual's autonomy and right not to be interfered with.[3]

Battery need not require body-to-body contact. Touching an object "intimately connected" to a person (such as an object he or she is holding) can also be battery.[4] Furthermore, a contact may constitute a battery even if there is a delay between the defendant's act and the contact to the plaintiff's injury. For example, where a person who digs a pit with the intent that another will fall into it later, or where a person who mixes something offensive in food that he knows another will eat, has committed a battery against that other when the other does in fact fall into the pit or eats the offensive matter.

The character of intent in civil battery is different from that for criminal battery. The character of intent sufficient for battery also varies between common law countries, and often within differing jurisdictions of those countries. In Australia, negligence in an action is sufficient to establish intent. In the United States, intention to do an act that ultimately results in contact that is either harmful or offensive is sufficient for the tort of battery, while intention to inflict an injury on another is required for criminal battery.[5] In the U.S., courts are split on how to test for sufficient intent. Some courts use the single intent rule which seeks to determine whether or not the defendant intended to touch the plaintiff, while some courts use the dual intent rule which seeks to determine whether or not the defendant sought to harm or offend by touching.[6]

Additionally, courts also follow the transferred intent doctrine in battery claims. For instance, if a person swings to hit one person and instead misses and hits another, they can still be held liable for a battery.[7] Intent to commit a different tort can transfer in the same way.[8] If a person throws a rock towards one person intending only to scare them (but not to hit them), they will be liable for battery to a different person who is hit by that rock.[9] In the United States, critics of this doctrine believe that the tort of negligence has superseded the need for transferred intent.[10] One issue is that the statute of limitations can be shorter for intentional torts such as battery than the statutes of limitations for negligent torts.[11]

The victim of a battery need not be aware of the act at the time for the tort to have occurred. For example, if a surgeon performing an appendectomy on an unconscious patient decides to take out the patient's spleen for his personal collection, the surgeon has committed a battery against the patient. Similarly, a battery occurs if the surgeon allows a cousin who is a plumber with no medical training to help fish out the appendix during the surgery. Although the patient has consented to being touched by the surgeon, this consent does not extend to people who the patient would not reasonably anticipate would be participating in the procedure.

The battery may occur even if the victim is unaware of the contact at the time and the defendant is nowhere near the scene at the time of the contact. If a tortfeasor puts an offensive substance in another person's food, and the other person consumes the offensive substance, the battery has been committed even if the victim is not made aware that they have eaten something offensive until much later.

In the United States, the common law requires the contact for battery be "harmful or offensive."[12] The offensiveness is measured against a reasonable person standard. Looking at a contact objectively, as a reasonable person would see it, would this contact be offensive? Thus, a hypersensitive person would fail on a battery action if jostled by fellow passengers on a subway, as this contact is expected in normal society and a reasonable person would not find it offensive. Harmful is defined by any physical damage to the body.

Because courts have recognized a cause of action for battery in the absence of body-to-body contact,[13] the outer limits of the tort can often be hard to define. The Pennsylvania Superior Court attempted to provide some guidance in this regard in Herr v. Booten[14] by stressing the importance of the concept of one's personal dignity. In that case, college students purchased and provided their friend with alcohol on the eve of his twenty-first birthday. After drinking nearly an entire bottle of Jack Daniels whiskey, the underage man died of acute ethanol poisoning. Reversing the decision of the trial court, the Pennsylvania Superior Court held that supplying a minor with alcoholic beverages, while certainly constituting a negligent act, did not rise to the level of a battery. In the words of Judge Montemuro, supplying a person with alcohol "is not an act which impinges upon that individual's sense of physical dignity or inviolability."[15]