The tort of
battery is one of the oldest and most litigated civil claims in the American common
law system. Battery is loosely defined as “offensive touching,”
and is distinguished from the separate tort of
assault. To succeed on a battery claim, the plaintiff must prove, by a preponderance
of the evidence, each of four elements. Once the judge or jury finds for
the plaintiff, they move on to determine
The Elements of a Battery Claim
Intent to Touch: The intent can be direct or indirect. The extended personality doctrine
can be used to find intent to “touch” even when the defendant
throws a ball at the plaintiff, or pulls the plaintiff’s chair out
from under him. The intent can be tangible or intangible, in that gases
or fumes can “touch” someone. The test to determine intent
is a subjective one, dependent on the state of mind of the specific individual
Intended Touch Was Likely to Cause Harm or Offense: The intended touch must also be likely to harm the recipient of the touch.
Here, the trier of fact applies an objective reasonable person test. If
they find that a reasonable person in the defendant’s position would
have known that the intended touch would have caused harm or offense,
then the defendant will be found to have intended to cause harm or offense.
The transferred intent doctrine can be applied to this element. If the
defendant intended to cause harm or offense to someone else, but actually
caused harm or offense to the defendant, the element is satisfied.
Actual Touch: In addition to intending to touch, and intending to cause harm or offense,
the defendant must actually touch the plaintiff. The harm can be direct
or indirect, as something like smoke can be determined to actually touch
the plaintiff. There can be an actual touch even if there was no intent
to touch the body of the plaintiff. The court uses an objective test to
determine this element, looking at whether there was an actual direct
or indirect touch.
Actual Touch Was Harmful or Offensive: After the first three elements have been satisfied, the trier of fact
must determine whether the actual touch that took place harmed or offended
the plaintiff. If the plaintiff consented to the touch, this element will
not be satisfied. This element also uses an objective reasonable person
test. Notice that battery does not require intent to harm or injure on
the part of the defendant. The defendant’s subjective intent is
only relevant insofar as he intends to touch the plaintiff. The other
elements use objective reasonable person standards.
What to Do if You Are the Victim of Battery
If you have been a victim of assault, battery, or any other intentional
tort, you should contact a personal injury attorney immediately. An attorney
can review the facts of your case and determine whether you have a viable
claim. If so, they can help you seek the compensation you deserve.