The battery does not need hand-to-hand contact. Touching an object that is “closely related to a person” (such as an object they are holding) can also be a battery. [3] In addition, a contact may constitute a battery, even if there is a delay between the defendant`s action and the contact with the plaintiff`s injury. For example, if a person digging a pit with the intention that another will fall into it later, or if a person mixing something offensive in food that he knows someone else will eat has committed a battery against that other if the other actually falls into the pit or eats the offending thing. We deal with a single and dual intention in the new edition of the CLOUT as well as the provisions of the third restatement. You can see it in chapter 8 by Dominick Vetri, Lawrence Levine, Joan Vogel, & Ibrahim Gassama, Tort Law and Practice, 5. Edition Carolina Press (2016) pp. 695-703, 711. We generally support the position of the third restatement. With the utmost respect for the excellent work of R3d journalists on this particular topic, I think there is a better third way that avoids the problems associated with a single, dual intent. The case of this pathway – according to which the required intention is the intention to provoke an offensive type or type of contact according to prevailing social norms – is beautifully laid out by my co-author Ben Zipursky here: torts.jotwell.com/moore-on-intent-and-battery/ If the perpetrator had only an attack intent (resulting in the imminent arrest of the other by an imminent violent rupture of the necklace), but did not intend to actually complete the violent crack, And yet his hand came into contact with the collar and actually broke, both an attack and a battery took place. In other words, if the physical act of forcibly tearing off the collar comes into contact and removes the neck collar from the other, a battery has occurred. The first problem (“apples and pears”) is the assumption that the “intentional” crime, without exception or systematically, has a more serious degree of fault than the negligent offense.
Many actual criminal doctrines, including assault, refute this assumption. Nancy Moore`s intent and approval in Tort of Battery: Confusion and controversy is something every professor of Torts should read. This is not only because it is interesting, well-written and deals with canonical cases. It`s also because it will teach many teachers to question something they thought they knew: the meaning of “intent” in the battery`s illicit act. While references to Vosburg and the (second) reformulation of the battery may seem a bit old-fashioned to some, such a judgment would be unfounded. Many aspects of assault law are ambiguous, inconsistent, vague and contradictory; Moreover, it is no longer sufficient to argue that the law of intentional tort can reasonably be referred to the issue of student pranks, from informed consent in the case of medical malpractice to unwanted touching in sexual harassment to the ever-increasing role of comparative culpability. A difficult battery is one that involves an aggravating circumstance. Adherence and punishment for heavy assault and battery is generally more severe than for bodily harm. Of course, in criminal law, the state will lay charges of assault, and the victim will witness the charge. In criminal courts, the focus is on the guilt or innocence of the accused and generally no restitution is available to the victim. However, the harm may be so severe that he or she may be eligible for support from a “victim compensation fund.” Conversely, the victim of a battery can bring a civil action arising from the same incident in which the defendant is charged with the battery offence.
In such a case, damages are usually compensatory (a fine), as well as special remedies such as injunctive relief or a penalty. Significant damage is not necessary, but there must still be tangible damage. Damage can be both economic and non-economic (emotional). This is important to distinguish between a battery and an attack. As part of the consent plea, a person who has expressly or implicitly consented to participate in a contact sport cannot make a claim against other participants for contact that is permitted by the rules of that sport or that should take place during play. For example, a basketball player who commits a severe foul against an opposing player does not commit a battery, because fouls are regularly part of the game, although they result in a penalty. However, a player who has beaten another player during a timeout would be responsible for the drums as there is no game-related reason for such contact. [10] This article shows that the current confusion and controversy surrounding the assault law doctrine is much more extensive than even these recent crime scholars have shown. It goes beyond the element of intent and includes uncertainty about the role of the applicant`s lack of real or apparent consent – that is, whether consent is a positive defence or whether lack of consent is a prima facie case of the applicant – and the relationship between intent and lack of consent. Moreover, this confusion and controversy is reflected not only in modern judicial decisions, but also in the superficial and adversarial treatment of assault law in most tort reports and treatises.
Finally, despite the LIA`s assumption that the provisions of Restatement (Second) have been widely adopted, there are many countries where courts formulate the doctrine of assault using terminology that differs significantly from the provisions of Restatement (Second). The standard defenses against intrusion into the person, namely necessity, consent, self-defense and defense of others, apply to the battery. [9] As practical examples, a physician in necessity may touch a person without their consent to provide medical assistance in an emergency. The victim of an assault does not have to be aware of the act at the time the offence was committed. For example, if a surgeon performing an appendectomy on an unconscious patient decides to remove the patient`s spleen for personal collection, the surgeon has committed a battery against the patient. Similarly, a battery occurs when the surgeon allows an untrained plumber cousin to fish the appendix during surgery. Although the patient has consented to be touched by the surgeon, this consent does not extend to persons whose patient would not reasonably expect to participate in the procedure. The second problem is (the lack of) generality: the law of intentional tort is not organized into a set of simple general rules, such as the prohibition of intentionally causing bodily harm, intentionally causing emotional harm, and intentionally causing economic harm. Nor would it be realistic or justified to rationalize the doctrine of intentional tort in this way (for example, the difference in protection in offences as diverse as wrongful imprisonment, invasion of privacy and defamation cannot be understood as mere salient examples of a general rule against intentionally causing undue emotional hardship). I did some research early in my career and found that the only reasonable answer is a single intention.
I found an article in the law overview that dealt with the joker problem. If double intent is the rule, then the practical joker will always come out, since his intention was to be funny, not harmful. Later, I discovered that the only intention is also what the Board of Bar Examiners uses in the state where my law school is located. The problem is caused by the joint that most people use for the battery: harmful or offensive intentional contact. I changed the articulation to avoid this problem: deliberate contact from another that leads to harm or insult. By separating intent and harm, the problem of dual intent disappears. None of these observations is sufficient to answer Moore`s normative question: Should the rule of dual intent be the rule? What I would say, however, is that scientists will benefit from Moore`s intelligence, insight and balance in approaching this question. Unlike criminal law, which recognizes various offences involving physical contact, there is only one offence.
The slight flapping of a person`s ear is a drum, as is hitting someone heavily with an iron. There is also no separate offence for assault of a sexual nature. However, a jury hearing a battery case is free to assess the greater damage to a battery when the contact was particularly offensive or harmful. Non-consensual contact can be established either with a person or with their extended personality. This means that if one person leans forward and pulls the jewelry necklace from another, a battery has occurred, even if the first person has never touched the second person`s neck. If this act was preceded by the intention of inciting the other to stop an imminent violent rupture of the collar, an attack and battery took place. Moore is correct that the text of Restatement (Second) §13(a) is ambiguous, but she is wrong in this ambiguity in at least two respects. First, it is ambiguous between at least three interpretations: the dual intent, the single intent, and the intent of the type of action. Secondly, the ambiguity is obvious and obviously requires clarification in the comments; There is no correct or preferred reading of the text of Article 13(a) represented by the text itself.
However, if one reads comment (c) to §13, it clearly excludes the rule of dual intent. With the statement that “the actor is held responsible for the drums, even though he honestly but “mistakenly believed that…
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