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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 damages.

The Elements of a Battery Claim

1. 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 in question.

2. 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.

3. 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.

4. 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.

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