When Determining Liability for Battery, Should We Use the Intent to Harm or the Intent to Touch

Business Law and Ethics

Final Paper

When determining liability for battery, should we use the intent to harm or the intent to touch?

Definition: According to the common law, battery is defined “any unlawful touching of the person of another by the aggressor himself, or by a substance put in motion by him.” Through this definition, battery is defined “unlawful” here, apparently, battery is not only wrongful in moral sense, but also violate the law. “Intention” is defined as “the decision to bring about a prohibited consequence” in R. v Mohan. It means someone has the potential purpose to do something. “Harm” is defined as”setbacks to interests” by Joel Feinberg, who classified harms to two types: setbacks to welfare interests and setbacks to ulterior interests. As for the “Touch”, which is generally “considered as one of the five traditional senses” ①

           Purpose: The paper will focus on discussing the difference between the intent to harm and the intent to touch, and analyze which standard is better to adopt. First, definitions of the key words “battery”, “intent”, “harm” and “touch”. Second, some doctrines will be used to determine the liability, such as transferred intent and three elements of battery. Then, in an objective way to analyze and compare the both sides with some specific cases related to the concept. Finally, according to what has been showed hereinbefore, I’ll give my own conclusion that when determining liability for battery, we should use the intent to harm rather than intent to touch.

           When determining the liability of battery, usually, different judges can take different decision, even with the same case. This is result of the different understanding of the standard that should be taken when choosing intent to harm or intent to touch. Then, what’s the standard should be taken into consideration? There is no doubt it derives from the word “battery”, as the definition implies, “battery is a criminal offence involving unlawful physical contact”, if the definition is totally receivable, here, we can clearly realize the severity of the action. Apparently, we should tend to intent to harm rather than intent to touch in this sense.

There seems that conflicts shouldn’t exist if we just consider it literally. While, the problem is the severity doesn’t mean all the wrongdoers have the intention to do harm, sometimes intending to touch may cause unintended harm. It is because of different understanding of this situation; there is diversity in the verdict.

           The clash between both sides will become drastic and apparent when applying to some specific cases, which has involving the actual benefits of both parties. To quote from the case Vosburg v. Putney, One of the questions has been aroused here: Was Putney, the defendant liable for the damages caused by unforeseen injuries? One day in the playground, Putney hit slightly with his toe the shin of the right leg of the plaintiff, the pain hasn’t been felt immediately, but later the injury continued to deteriorate. Then, the plaintiff brought claims against defendant for common law battery. There is no doubt that the defendant was in an action for battery whose kick caused the plaintiff lost the use of the injured leg. But the problem is he didn’t have the intent to do any harm to the plaintiff, the harm was unintended, and so does the intended kick responsible for the unintended harm? It’s because this question, the lawsuit existed for several rounds. The supreme court of Wisconsin rendered a verdict for the plaintiff, their standard was intent to harm, and the reason was they believe the original injury was revivified by the touch; this kick was the exciting cause.

While, sounds from the defendant were different, when face the two standards, defendant chose the intent to touch without hesitation, he believed that “only such damages could be recovered as the defendant might reasonably be supposed to have contemplated as likely to result from his kicking the plaintiff.” It sounds reasonable, as bystander, we have to say it was bad luck for Putney, because the victim who received the unintended harm was a kind of people so called “eggshell skull”. Assume that this kick happened to a normal person, things would be very simple. But law doesn’t care about whether the defendant knew the fact which was considered in moral sense②. To decide whether someone should be liable for battery, here we should use a theory about “Elements of the Tort of Battery”:

Under the Restatement of Torts an actor who commits a direct or indirect act which is the legal cause of a harmful contact with another is liable if: 1) the act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a third person, and 2) the contact is not consented to by the other or the other’s consent thereto is procured by fraud or duress, and 3) the contact is not otherwise privileged.

Intent requires that the act must be done for the purpose of causing the contact or apprehension or with knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced. A battery would be established if a party acts with substantial certainty that a result will occur. The mere absence of any intent to injure, play a prank on, or embarrass the plaintiff, or to commit an assault and battery on her, would not absolve the defendant of liability if in fact he had such knowledge. ③

These three elements could also be simplified to: firstly, intent to touch; secondly, wrongful; thirdly, do harm.

In this case, obviously, defendant should take responsibility for what he did base on these elements. Besides, to quote from Brown v. C., M. & St. P. R. Co. 54 Wis. 342, the rule of damages in actions for torts was to be “the wrongdoer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him.” ④

Things are always changing, when the assumed condition changed, whether the verdict standard will be changed? In last case, Putney had the intention to touch the plaintiff directly and caused harm, while in next case, the defendant caused accidentally injure to a third person. To quote from the case Davis v. White, the defendant White argued with Tipton, after seeing White pulled a gun, Tipton mounted his motorcycle and sped away, White shot at Tipton, but he missed Tipton, unfortunately, then the bullet hit Davis’s stomach who was washing his car and lives less than one block away from the two arguing people.

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