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Chapter 9: Battery, Assault, and False Imprisonment

p. 667

CHAPTER 9

Battery, Assault, and False Imprisonment

I. Introduction
II. Battery and Assault: Elements
Cecarelli v. Maher
Paul v. Holbrook
Vosburg v. Putney
Cole v. Hibberd
Wagner v. State
Beach v. Hancock
Brooker v. Silverthorne
Vetter v. Morgan
In re White
III. Standard Defenses to Battery and Assault
Koffman v. Garnett
Haeussler v. De Loretto
Katko v. Briney
IV. False Imprisonment
Fojtik v. Charter Med. Corp.
Grant v. Stop-N-Go Market of Texas, Inc.
Irvin v. City of Shaker Heights
References/Further Reading

I. INTRODUCTION
Part Two of this book provides an in-depth treatment of the tort of negligence as it applies to claims
for bodily injury and property damage. Part Three begins with a discussion of torts that are in some
ways even more basic and more deeply rooted in our legal history than negligence. These are the
torts of battery, assault, and false imprisonment. A straightforward example of a battery is a
deliberate punch in the nose. The idea of an assault is captured by a situation in which one person
points a gun at another person who is standing nearby and threatens to shoot him. Deliberately
locking someone in a room against her will is an instance of false imprisonment. Precisely because
these torts are so basic, many torts professors prefer to start their courses with them. This book is
designed to support courses that do so.

The second chapter of Part Three — Chapter 10 — provides materials on another tort, namely,
intentional infliction of emotional distress (IIED). IIED can be defined, preliminarily, as one person
acting abominably or outrageously with the intention of causing another to suffer severe emotional

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distress. As we will see, although it is a distinct tort, IIED is historically and conceptually linked to
battery, assault, and false imprisonment. Indeed, it emerged as part of a judicial effort to fill gaps
created by these ancient torts. In turn, the courts’ recognition of IIED helped give birth in the
twentieth century to a special branch of negligence law often referred to as negligent infliction of
emotional distress (NIED). This is why Chapter 10 also includes materials on NIED. If your torts
class begins with Chapter 9, the discussion of NIED — and perhaps of all the materials in Chapter
10 — may be postponed until after consideration of some of the negligence materials in Part Two.

Before proceeding to our examination of battery, assault, and false imprisonment, it will be helpful
to discuss a bit of torts terminology. It is common for lawyers to use the phrase intentional torts as a
label for a category that includes several distinct causes p. 668of action, principally: (1) battery, (2)
assault, (3) false imprisonment, (4) IIED, and (5) trespass to property.*1 The main virtue of this
usage is that it emphasizes a basic difference between these torts and the tort of negligence. In
contrast to negligence, these torts cannot be committed entirely by accident.**1 Instead, liability for
each requires that the actor being sued acted with an intent to accomplish a certain kind of
consequence, or with actual knowledge that such a consequence would come about. Much of the
material in Chapter 9 and the first part of Chapter 10 will be concerned to flesh out what exactly is
meant by words like “intent” and “knowledge.”

Although now standard, the label “intentional torts” has some downsides. In particular, it seems to
suggest that each tort that it covers employs the same notion of intent. As we will see, that is not
the case. The intent that is required to commit the tort of trespass to land is different from the intent
necessary to commit battery. Moreover, there are other torts that are also distinct from negligence
in requiring a certain sort of intentional conduct as a condition of liability, yet are excluded from the
intentional torts category. For example, one cannot commit the tort of fraud without acting with
intent to deceive another, yet fraud tends not to be grouped with battery, assault, and false
imprisonment.

Because of these and other problems, if we were writing on a clean slate, we probably would be
inclined to refrain from using the phrase “intentional torts.” But the usage is pervasive now, and, as
noted above, there are historical and conceptual linkages between several of the torts that now
tend to be placed under the intentional torts heading. Thus, we present four of the traditional
intentional torts — battery, assault, false imprisonment, and IIED — together in this part of the
book. We reserve consideration of trespass to land for Chapter 11 under the separate heading of
“Property Torts.”

II. BATTERY AND ASSAULT: ELEMENTS

Tort law defines injurious wrongs that one person or entity can commit against another. At the same
time it empowers the victim of such a wrong to bring a claim against the wrongdoer as a way of
redressing the wrong. Probably there is no clearer example of a legally recognized wrongful injuring
— of a tort — than an intentional punch in the nose. A purposeful, harmful striking or touching of
one by another is a p. 669simple example of battery, and the victim of such a touching can often
obtain damages against the person who did it. Indeed, the recipient of a purposeful punch can do
so even if the punch does not result in a broken nose or other lasting physical harm. This is
because the wrongfulness of battery resides in the intentional touching, not in the causing of

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physical harm.

The foregoing description of battery is deliberately loose. The cases that follow will allow us to
consider more carefully how the law defines this tort. Before proceeding to those materials,
however, it will be useful to outline the distinction between the tort of battery and the separate tort
of assault, because legal usage differs somewhat from everyday usage.

In tort law, a battery requires (among other things) an actual touching of the victim, either direct or
indirect, by the wrongdoer (or “tortfeasor”). By contrast, an assault occurs when a person
intentionally acts so as to cause another to apprehend that he is about to suffer a certain kind of
contact. Thus, as noted above, if person D, while looking person P in the eye, points a real gun at P
with his finger on the trigger, D has committed an assault on P, whether or not the gun fires or the
bullet hits P. (However, if the bullet does hit P, D has committed both an assault and a battery).
Conversely, if D were to approach P from behind and shoot P by surprise, there would be no
assault because of the absence of any apprehension by P. Instead, there would only be a battery.

Battery and assault are thus the names of different torts that identify and respond to different sorts
of misconduct and injuries. That the two are often mentioned together, as in the familiar phrase
“assault and battery,” owes in part to the fact that there is a great deal of conduct — like the actual
shooting scenario described in the preceding paragraph — that constitutes both battery and
assault. In addition, “assault” and “battery” are the names of crimes as well as torts, and some
criminal codes do not draw the line between these two crimes by reference to the distinction
between actual contact and apprehension of contact. Even in tort cases — as we see immediately
below in Cecarelli — judges and lawyers will sometimes use the terms “battery” and “assault”
loosely and interchangeably. Finally, as will be discussed below under the heading of “transferred
intent,” there are certain special instances in which conduct can form an assault-battery hybrid.

A. Battery

1. Harmful or Offensive Touching

A more refined but still somewhat skeletal formulation of battery defines it as the infliction of a
harmful or offensive contact by an actor upon another with the intent to cause such contact. See
Restatement (Third) of Torts §1 (Tent. Draft. No. 4, April 1, 2019). Although most batteries are
probably both harmful and offensive, the “or” in this definition indicates that either harmfulness or
offensiveness in the touching will suffice. The pair of cases below provides one example of a
harmful-touching battery and one example of a possible offensive-touching battery. Some basic
questions about tort law come to the fore when one examines these “plain vanilla” battery cases.
Why p. 670have the underlying events given rise to a tort suit in addition to, or instead of, a criminal
prosecution? What is the plaintiff hoping to accomplish by bringing the defendant to court? What
sort of relief should the plaintiff be able to obtain via his or her lawsuit?

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CECARELLI v. MAHER

12 Conn. Supp. 240 (Com. Pl. 1943)

Cullinan, J. A willful, apparently unprovoked, and thoroughly unjustifiable assault represents the
background of this litigation. The plaintiff, a personable, well-spoken and well-groomed young man,
25 years of age, alleges that the defendant George Maher, in concert with John Heinz and an
unknown assailant, beat and assaulted him with intense ferocity to produce most serious physical
consequences.

On the evening of August 1, 1943, the plaintiff attended a public dance at Sea Cliff, New Haven, at
the conclusion of which three young ladies requested him to drive them to their homes. His
willingness to meet this request appears to have provoked the anger and wrath of the defendant
and his two companions, who, at a p. 671secluded and lonely spot adjacent to the dance hall, set
upon him to administer a severe, and painful beating. Fists and dangerous instruments constituted
the implements of aggressive warfare.

In consequence, the plaintiff’s upper right central and upper right lateral teeth and roots were
severed from their sockets; his upper left central, lower right central, and lower right lateral teeth
were so destroyed as to necessitate ultimate removal; his upper lip was severely lacerated,
requiring sutures and resulting in an involvement of the nasal septum; his nose and left eye were
abrased and contused; and his right arm, right shoulder, and right side became exceedingly sore
and tender as a result of a vicious kicking process. Thereafter, the plaintiff required emergency
hospital treatment and a complete restoration of the dental structures with the replacement of five
teeth. In addition, the plaintiff was forced to absent himself from his employment for a complete
week, experiencing acute pain for an extended period after his return to work.

The terrifying and violent episode had its basis in the ungovernable tempers of these young men,
who, after having had their attentions spurned by three young women, struck fiercely, suddenly, and
stealthily at the innocent plaintiff. Both the defendant Maher and his companion Heinz were
subsequently arrested and offered guilty pleas to assault charges before the City Court of New
Haven. The third assailant is unknown to the plaintiff and his identity has never been disclosed by
his colleagues in violence.

This action originally joined both Maher and Heinz as codefendants. Subsequently, the action was
withdrawn as to Heinz, and a default judgment has been entered against Maher by reason of his
failure to appear. Thus, damages are now to be assessed against Maher alone.

By way of special damage, the plaintiff has lost in wages and has become obligated to expend for
dental and medical treatment approximately $315. To this sum may be added $2,000, representing
fair and reasonable compensation for his pain, suffering, and permanent injury. Judgment may
enter for the plaintiff to recover of the defendant $2,315, together with taxable costs.

PAUL v. HOLBROOK

696 So. 2d 1311 (Fla. App. 1997)

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Orfinger, A.J. Meredith A. Paul (“Paul”) appeals an order of the trial court granting summary
judgment in favor of Professional Medical Products, Inc. (“PMP”) and Paul Holbrook (“Holbrook”) on
Paul’s claims against Holbrook and PMP for assault, battery, intentional infliction of emotional
distress, negligent infliction of emotional distress and negligent hiring and retention. We affirm the
entry of summary judgment in all respects except as to the battery claim against Holbrook. On that
single claim, we reverse.

Paul and Holbrook are former employees of PMP. Paul testified that Holbrook was her co-worker
and not her supervisor. On various occasions, Paul worked alone with Holbrook. During some of
these times, Paul alleges that Holbrook harassed her by asking that she wear revealing clothing
and suggesting that they engage in sexual relations. p. 672Paul claims that on two occasions,
Holbrook came up behind her while she was working and tried to massage her shoulders. On both
occasions, Paul immediately pulled away and told Holbrook to leave, which he did. After Paul
complained to PMP’s management, she and Holbrook never again worked the same shifts and his
improper behavior toward her ended.

While Paul takes issue with the trial court’s judgment in its entirety, we find merit only in Paul’s
contention that the trial judge erred in granting summary judgment on her battery claim against
Holbrook, finding that Holbrook’s contact with Paul amounted to no more than a “casual touching”
and concluding that Paul failed to produce evidence establishing intent.

A battery consists of the infliction of a harmful or offensive contact upon another with the intent to
cause such contact or the apprehension that such contact is imminent . . . . Restatement (Second)
of Torts §18 (1965); W. Page Keeton, et al., Prosser and Keeton on Torts §9 (5th ed. 1984).
Professor Prosser’s treatise explains that the tort of battery exists to protect the integrity of the
person. As Prosser & Keeton wrote in section 9:

Proof of the technical invasion of the integrity of the plaintiff’s person by even an entirely harmless,
but offensive contact entitles the plaintiff to vindication of the legal right by an award of nominal
damages, and the establishment of the tort cause of action entitles the plaintiff also to
compensation for the resulting mental disturbance, such as fright, revulsion or humiliation.

Id. (footnotes omitted). Once a contact has been established, its character becomes the focus:

The element of personal indignity involved always has been given considerable weight.
Consequently, the defendant is liable not only for contact[s] which do actual harm, but also for
those relatively trivial ones which are merely offensive and insulting . . . .

The time and place, and the circumstances under which the act is done, will necessarily affect its
unpermitted character, and so will the relations between the parties. A stranger is not to be
expected to tolerate liberties which would be allowed by an intimate friend. But unless the
defendant has special reason to believe that more or less will be permitted by the individual
plaintiff, the test is what would be offensive to an ordinary person not unduly sensitive to personal
dignity.

Id. (footnotes omitted). Offensiveness is an essential element of the tort. The trial court, relying on
Gatto v. Publix Supermarket, Inc., 387 So. 2d 377 (Fla. 3d DCA 1980), concluded that, as a matter
of law, Holbrook’s actions were not offensive. The plaintiff in Gatto testified that a store employee,

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in attempting to retrieve allegedly stolen items from the plaintiff’s hands, “came into contact with
either part of [his] palm or [his] wrist or [his] arms.” 387 So. 2d at 379. The third district concluded
that this was not evidence of an offensive contact. But, the act of approaching a co-worker from
behind while on the job and attempting to massage her shoulders is, in the circumstances of this
case, not capable of such summary treatment. On these facts, offensiveness is a question for the
trier of fact to decide.

p. 673The trial court also found that Paul failed to produce evidence establishing Holbrook’s intent
to commit a battery. Proof of intent to commit battery is rarely subject to direct proof, but must be
established based on surrounding circumstances. Based on the record before this court, a jury
could reasonably infer that Holbrook intended to touch Paul in a matter that would constitute a
battery. No evidence of an intention to cause harm is necessary.

The trial court properly granted summary judgment against Paul in all respects except with regard
to the battery claim against Holbrook. On that claim, we reverse. In all other respects, we affirm the
trial court’s judgment.

NOTES AND QUESTIONS

1. Same Tort, Different Times; Same Wrong? The judicial opinions in Cecarelli and Paul rather
obviously reflect certain cultural differences between the two eras in which they were written. Yet
the same tort of battery was available (or, in Paul’s case, may have been available) to enable them
to respond to a certain kind of mistreatment. In fact, the action for battery, though sometimes
identified by other names, was available to victims of physical attacks in medieval England. What
explains the endurance of this tort cause of action, notwithstanding massive economic, political,
social and intellectual changes? Given their evident differences, do Cecarelli and Paul even involve
the same wrong? Note that some workplace sexual harassment is now actionable under federal
anti-discrimination statutes independently of whether the harassing conduct suffices to constitute a
common law battery. See Chapter 10.

2. Tort and Crime. The trial court’s opinion in Cecarelli mentions that two of the assailants (Maher
and Heinz) pleaded guilty to charges of criminal assault. (As noted above, criminal law sometimes
uses the term “assault” to cover conduct that tort law defines as “battery.”) Under state and federal
law, the same conduct can give rise to a criminal prosecution and a civil tort suit. See Chapter 1
(Section III, “Tort Law in Context”). Often, however, the civil suit will be stayed (held in abeyance)
until the conclusion of the criminal proceedings.

Given that Maher and Heinz were both facing a criminal fine and/or imprisonment, what is the point
of having the courts entertain a tort suit against them? It is not difficult to imagine why Cecarelli
might want to proceed with such a suit. But why should Connecticut law recognize criminal and civil
actions for the same conduct? Would it be better instead to bar tort claims in any instance in which
the would-be tort defendant is criminally prosecuted?

3. Default Judgment. The Cecarelli opinion also mentions that the plaintiff withdrew his claim
against Heinz and that he obtained a “default judgment” against Maher. What could explain why
Cecarelli withdrew the claim against Heinz?

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Default judgments are typically entered by a trial court when the defendant fails entirely to respond
to the plaintiff’s complaint, and hence without the plaintiff having given any evidence in support of
his allegations of wrongdoing. However, before p. 674entering a default judgment awarding
compensatory damages for personal injuries, a court will usually demand evidence from the plaintiff
as to the extent of his or her injuries.

4. Employer Responsibility for Employee Torts. Note that in Paul the plaintiff brought claims
against her fellow employee Holbrook, but also separate claims against their employer, PMP,
including claims for battery and negligent hiring. What might be accomplished by bringing the latter
claims, assuming they were to have succeeded? Given that Holbrook is the only person alleged to
have inappropriately touched Paul, what is the legal basis for claims against PMP?

As it turns out, Paul’s battery and negligent hiring claims against PMP stand on different legal
grounds. The former is an attempt to hold PMP vicariously liable — that is, liable for Holbrook’s
battery simply because Holbrook committed the battery while acting in his capacity as a PMP
employee. As explained in Chapter 1, this particular form of vicarious liability goes under the
heading of respondeat superior, a Latin phrase that refers to the idea of requiring an employer to
answer for wrongs committed by its employee.*2

By contrast, a negligent hiring claim is an attempt to hold an employer directly liable rather than
vicariously liable. In Paul’s case, the gist of her negligent hiring claim would have been that, at the
time PMP hired Holbrook, it knew or should have known that he posed a danger to other
employees, and hence that its decision to hire him was careless as to the physical well-being of
persons such as Paul.

5. Summary Judgment. As explained in more detail in Chapter 1 (Section II.D, “Proceeding

Through Court”) a party making a motion for summary judgment is requesting the trial judge to
resolve an issue (or issues) that would ordinarily be resolved at trial by a jury. Such a request
maintains that a jury trial is unnecessary because there is undisputed evidence pertaining to the
issue, and because, given the applicable law, any reasonable juror presented with that evidence
would have to decide for the moving party. In Paul, both defendants (Holbrook and PMP) moved for
summary judgment on the ground that a reasonable jury could only find for them on each of Paul’s
claims. The trial judge agreed and granted their motions, which entailed the dismissal of Paul’s
lawsuit prior to trial.

The Florida appellate court concluded that the trial court committed an error of law in granting
summary judgment for Holbrook with respect to Paul’s battery claim against him. It thus reinstated
that one claim and therefore reversed the trial court’s dismissal of Paul’s lawsuit. Did this ruling
entail that Paul would prevail on her battery claim against Holbrook? Notice that the appellate court
affirmed the trial court’s entry of summary judgment for Holbrook on Paul’s other claims against
him, as well as for PMP on all of Paul’s claims against it. Why?

p. 6756. Elements of Battery. Courts and commentators often find it helpful to define torts in terms
of elements or constituent parts. Building on, but also departing somewhat from, the definition
provided in Section 1 of the Restatement (Third) of Torts,*3 one can describe the elements of
battery as follows:

Battery: Prima Facie Case

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Actor A is subject to liability to other person P for battery if:

1. A acts,

2. intending to cause a contact with P;

3. the contact with P that A intends is of a harmful or offensive type; and

4. A’s act causes P to suffer a contact that is harmful or offensive.

This formulation sets out the elements that, at a minimum, must be proven by a plaintiff claiming
battery in order to be eligible for a remedy. Even if the plaintiff can prove these elements, the
defendant may be able to avoid liability on the basis of certain affirmative defenses. This is the
import of the phrase “prima facie case.”

7. Consent, or Lack Thereof: Defense or Element? All courts agree that consent by the plaintiff
to intentional bodily contact by the defendant can affect battery liability. This is hardly surprising —
other things being equal, there is a world of difference between consenting to one’s hair being
shaved off in a salon or barber shop and having it shaved off against one’s will. Courts disagree,
however, over where within the analysis of a battery claim consent should figure.

Some treat lack of consent as an element of the plaintiff’s prima facie case, such that the plaintiff
must prove nonconsent in order to prevail. See, e.g., Wulf v. Kunnath, 827 N.W.2d 248, 254 (Neb.
2013) (battery is an “infliction of an unconsented injury upon or unconsented contact with another.
Consent ordinarily bars recovery, because it ‘goes to negative the existence of any tort in the first
instance.’ It does so by destroying the wrongfulness of the conduct between the consenting
parties.”) (citations, quoted authority omitted). Others treat consent as an affirmative defense to be
pleaded and proved by the defendant. See, e.g., Koffman v. Garnett, infra; Janelsins v. Button, 648
A.2d 1039, 1042 (Md. Ct. Spec. App. 1994) (consent is a “complete defense” in a battery action).
Still others — possibly the majority — fail clearly to take a stance. See, e.g., Mich. Model Civ. Jury
Instrs. 115.02, 115.06 (defining battery as the intentional touching of a person against that person’s
will but treating consent to participation in a fight as an affirmative defense).

p. 676As indicated in the above formulation of the prima facie case of battery, as well as the
organization of the current chapter, this book adopts the second approach, generally treating
consent as an affirmative defense.*4

8. The Act Element. The first element — the act requirement — is rarely litigated. It builds a
minimal volitional component into the tort. One standard example of a non-act in this context would
be if D, against C’s will, were to grab C’s hand and use it to slap P’s face. P would not have a
battery claim against C even though C’s hand made contact with P’s body because C did not act,
much less act with an intent to slap P. Likewise, suppose bus passenger B is standing on a
crowded city bus and holding firmly onto an overhead rail to keep his balance. If the bus
unexpectedly comes to a sudden stop, thereby causing B to crash into fellow passenger F, B has
not “acted,” at least not within the time frame relevant to a potential claim for battery by F.**2

9. The Contact Element: Direct and Indirect Contact. The second element of the above
formulation — the intent element — is considered in several cases below. Here we will turn to the

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third element: contact. Cases like Cecarelli and Paul provide examples of touchings in the form of
relatively direct, flesh-on-flesh (or flesh-on-clothes) contacts. However, a touching need not be
flesh-on-flesh, nor directly caused, to give rise to a claim for battery. Most obviously, shootings that
cause bodily injury to another can count as batteries, assuming the other elements are met. So too
would an attack by a dog that is ordered by the dog’s owner. Bernadsky v. Erie R. Co., 70 A. 189
(N.J. Err. & App. 1908) (affirming a jury verdict for the minor plaintiff where the defendant’s
employee “sicked” his dog on the plaintiff).

10. What Must Be Touched? The interest underlying the tort of battery is the interest in controlling
others’ access to one’s body. In protecting that interest, tort law creates a protective zone or space
around the body by rendering actionable certain contacts with things closely connected to it. For
example, if D shoots at P, but manages only to make a bullet hole in the sleeve of the shirt that P is
wearing, D has caused a touching of P sufficient to generate a claim for battery.

In the well-known case of Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex. 1967),
plaintiff, an African American man, was standing in a buffet line at defendant’s motel while holding
an empty plate in his hands. One of defendant’s employees snatched the plate away from him,
telling Fisher that the restaurant did not serve African Americans. The court upheld a jury award of
compensatory and punitive damages for battery on the ground that the employee’s snatching of the
plate amounted to an offensive touching of Fisher. Fisher provides an example of what is
sometimes p. 677referred to as the doctrine of extended personality. See Picard v. Barry Pontiac-
Buick, Inc., 654 A.2d 690 (R.I. 1995) (battery can be established by contact with “anything so
connected with the body as to be customarily regarded as part of the other’s person and therefore
as partaking of its inviolability . . . ”). The touching of an object with which a person happens to be
in contact will not always count as a violation of the person of the plaintiff. For example, if R were
angrily to kick a lamppost against which S happened to be leaning, the kick would not likely of itself
suffice to establish a touching of S.

11. How Physical Must the Touching Be? The notion of contact or touching conveys the idea of
physical contact between two objects. However, there are other perhaps less obvious forms of
contact. For example, some persons killed by explosions die not because they are crushed by
falling objects or hit by shrapnel, but by virtue of an intense shock wave of energy or by massive
increases in air pressure (if, for example, the explosion occurs in a confined space). Such persons
are treated for purposes of battery law as having been touched. Likewise, if M fills Q’s house with
odorless, colorless, and deadly carbon monoxide gas, Q suffers harmful contact by inhaling the
poisonous gas.

In Leichtman v. WLW Jacor Communications, Inc., 634 N.E.2d 697 (Ohio App. 1994), the plaintiff, a
prominent anti-smoking advocate, alleged that the defendant, a radio personality, invited the
plaintiff to the radio station for an interview, then lit up a cigar and repeatedly blew smoke in
plaintiff’s face for the purpose of causing plaintiff discomfort and embarrassment. Reversing the trial
court’s dismissal of plaintiff’s battery claim, the appellate court reasoned that the plaintiff had
adequately alleged an offensive touching, such that he should be entitled to prove his claim to a
jury. Although insisting on the plaintiff’s right to proceed with the litigation, the court lamented the
absence of a simpler, less elaborate, less expensive manner of resolving the dispute. Is your sense
that a claim like Leichtman’s cries out for resolution outside of the traditional court system? Does
your judgment change if one focuses not on the contact he allegedly endured, but on the
humiliation and embarrassment that he may have suffered? If the latter injuries provide the gist of
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Leichtman’s complaint, is it really best framed as a complaint about a battery?

Suppose L is listening to headphones connected to a tuner and amplifier located on a bookshelf six
feet behind where L is sitting. As a practical joke, K sneaks up behind L, then turns a dial on the
amplifier so as to sharply increase the volume of the music, causing L momentary but extreme
discomfort. Is this a touching of L by K? Would the result change if L had been listening to music on
a phone held in L’s hand??

12. Purposeful Infliction of Bodily Harm. The portion of the Third Restatement of Torts devoted
to “intentional torts to the person” — which, as of the publication date of this edition, has not yet
been fully approved by the American Law Institute — includes a provision titled “Purposeful
Infliction of Bodily Harm.”*5 This provision is offered as a “supplement” to battery, and is meant to
capture cases in which an actor acts for the specific intent of causing bodily harm to another
through means other than physical p. 678contact.*6 As one illustration, the Reporters give the
example of a prison guard who, for the purpose of making an inmate ill, arranges for the heat to be
turned off in the inmate’s cell, as a result of which the inmate contracts pneumonia. Would the
inmate be unable to make out a claim for battery? Can you think of other examples of intentionally
inflicted physical harm that do not fit the definition of battery?

13. Harmful or Offensive Contact. “Harmful” contact is straightforward — it involves contact that
causes bodily harms such as bruising or broken bones. The concept of “offensive” contact is
somewhat subtler. Crucially, the test for offensiveness is “objective” rather than “subjective.” In
other words, the issue under the contact element is not whether the person touched actually takes
offense at the contact. (In fact, the victim of a battery usually will feel offended, but such a reaction
is not sufficient for a contact to count as offensive in the eyes of the law.) Rather, the contact must
violate prevailing social standards of acceptable touchings. To be spat upon by a stranger is a
quintessential instance of suffering an offensive contact. By contrast, if two strangers, X and Y, are
standing at a public street corner, and Y taps X on the shoulder to ask for directions, the touching
will not be deemed offensive, even if X is in fact offended. Cf. Wishnaskey v. Huey, 584 N.W.2d 859
(N.D. App. 1998) (defendant lawyer’s closing of an office door on the plaintiff (a paralegal), done to
push plaintiff out of the office while defendant carried on a conversation with an attorney for whom
plaintiff worked, deemed to be not offensive).

The same act of touching might be inoffensive in some contexts, yet offensive in others, depending
on who is doing the touching, who is being touched, what the relationship is between them, the
setting in which the touching occurs, etc. Compare Newsome v. Cooper-Wiss, Inc., 347 S.E.2d 619
(Ga. App. 1986) (a jury may find that an office worker who repeatedly rubbed against his secretary
committed an offensive-contact battery) with Mangrum v. Republic Indus. Inc., 260 F. Supp. 2d
1229 (N.D. Ga.) (supervisor’s hugging plaintiff and patting her bottom cannot support battery claim
where plaintiff testified to having participated in similar conduct with supervisor and other
employees), aff’d, 88 Fed. Appx. 390 (11th Cir. 2003) (Table). Some courts, folp. 679lowing the
Third Restatement, express the idea of offensiveness in terms of contact that “offends a reasonable
sense of personal dignity.” Restatement (Third) of Torts: Intentional Torts to Persons §3(a) (Tent.
Draft No. 4, April 1, 2019). As noted in Paul, Prosser’s Hornbook offers as a criterion: “what would
be offensive to an ordinary person not unduly sensitive as to his dignity.” W. Page Keeton, et al.,
Prosser and Keeton on Torts, §10, at 42 (5th ed. 1984).

Check Your Understanding

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Judge and Jury

If a battery suit goes to trial, who ordinarily decides whether the defendant’s touching is of a sort
that would be offensive to an ordinary person?

See Mortenson v. City of Oldsmar, 54 F. Supp. 2d 1118, 1126 (M.D. Fla. 1999) (citing Paul v.
Holbrook for the proposition that the offensiveness of the defendant’s kissing of the plaintiff was a
factual question to be determined by the jury).

2. Intent

We noted above that battery is grouped by many commentators as one of the intentional torts to
emphasize the centrality of intentional or purposive action to the definition of the wrong. A
genuinely accidental touching of another person cannot be a battery because of the lack of
intentionality on the part of the person doing the touching. Notwithstanding its centrality to battery,
intent is an elusive concept. Accurate description and application of the intent element requires
careful attention to (1) what the law requires an actor to have intended in order to commit battery,
and (2) the sort of evidence that will suffice to prove that the defendant acted with that intent. The
cases below focus mainly on the first of these issues. Before turning to them, we briefly discuss the
second issue: proof of intent.

1. Inferences from Circumstantial Evidence. In gauging whether an actor has acted toward
another person with the requisite intent, judges and juries are required to determine the mental
state of the actor at the time of acting. In everyday life, mental states are not directly observable in
the way that physical movements and events can be. Thus, even in a straightforward case, a
battery plaintiff must rely on circumstantial evidence to establish that the defendant acted with the
requisite intent.

In some cases, plaintiffs will have access to evidence “from the horse’s mouth.” For example,
imagine that A crashes into and knocks down B as they pass one another on the street and that B
sues A for battery. On the witness stand at trial, A initially denies that she acted for the purpose of
knocking over B. However, under withering examination from B’s attorney, A finally blurts out: “All
right, yes, I meant to knock over B.” Alternatively, suppose that B is fortunate enough to discover
that W, a witness to the incident, is prepared to testify that, moments before the incident, A told W
that she was planning to knock over B. In either situation, B would seem to have compelling
evidence of A’s intent from A herself.

More typically, an intentional tort plaintiff will have to rely on evidence pertaining to the defendant’s
outward behavior to support an inference that the defendant acted with the requisite intent. At
times, that inference will be relatively easy to draw. Suppose D, a champion darts player, is playing
an ordinary game of darts in a bar. In typical fashion, D is defeating her opponents with an
extraordinary display of throwing accuracy. Suppose further that D spears P with a dart, even
though P was standing 15 feet away from the dartboard at the time. Finally, suppose that the jury is
presented with evidence that D and P had been seen arguing heatedly earlier that day. Even if D
were to insist that the dart “slipped” from her hand, a jury would almost certainly be entitled to infer
from this evidence that D acted for the purpose of spearing P with the dart.

p. 680Circumstantial evidence can also be used for other purposes besides proving intent. For

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example, a plaintiff who is subjected to an intentional physical attack can sometimes rely on
circumstantial evidence to identify the defendant as the perpetrator. Compare Lackie v. Fulks, 2002
WL 1308646 (Mich. App.) (plaintiff, attacked in a bar, did not see his assailant, but circumstantial
evidence permitted the jury to conclude that it was the defendant), app. denied, 655 N.W.2d 562
(Mich. 2002), with O’Connell v. Jacobs, 583 N.Y.S.2d 61 (N.Y. App. Div. 1992) (minor plaintiff who
was attacked in her bed but unable to identify her assailant could not prove assault and battery
claims brought against one of several older children staying in the house at the time; no evidence
indicated who among the older children committed the attack), aff’d, 611 N.E.2d 289 (N.Y. 1993).

Burdens of Production and Persuasion. In tort cases, the onus is ordinarily on the plaintiff to
prove that a tort has been committed. Thus, the plaintiff has the burden of supporting her
allegations by presenting physical evidence, witness testimony, and the like. In addition, the plaintiff
bears the “burden of persuasion.” Unlike criminal prosecutions, in which the prosecutor must prove
beyond a reasonable doubt that the defendant committed the charged crime(s), in tort suits the
plaintiff need only prove her allegations by a preponderance of the evidence. This means that she
must present evidence sufficient to permit the factfinder to conclude that her allegations are more
likely than not true. To say the same thing, the plaintiff must convince the factfinder that her account
of what happened is probably what happened.

Thus, when pursuing an intentional tort claim, the plaintiff must, on the issue of intent, produce
evidence sufficient to permit the factfinder to conclude that the defendant probably acted with the
intent that the law deems necessary for conduct to count as one of the intentional torts. Certainty
on the part of the factfinder as to intent (and as to the other elements of these torts) is not required
for the plaintiff to prevail.

VOSBURG v. PUTNEY

50 N.W. 403 (Wis. 1891)

Lyon, J. The action was brought to recover damages for an assault and battery, alleged to have
been committed by the defendant upon the plaintiff on February 20, 1889 . . . . At the date of the
alleged assault the plaintiff was a little more than 14 years of age, and the defendant a little less
than 12 years of age. The injury complained of was caused by a kick inflicted by defendant upon
the leg of the plaintiff, a little below the knee. The transaction occurred in a school-room in
Waukesha, during school hours, both parties being pupils in the school. A former trial of the cause
resulted in a verdict and judgment for the plaintiff for $2,800. The defendant appealed from such
judgment to this court, and the same was reversed for error, and a new trial awarded. The case has
been again tried in the circuit court, and the trial resulted in a verdict for plaintiff for $2,500 . . . . On
the last trial the jury found a special verdict, as follows:

1. Had the plaintiff during the month of January, 1889, received an injury just above the knee,
which became inflamed, and produced pus? Answer. Yes.

2. p. 681Had such injury on the 20th day of February, 1889, nearly healed at the point of the
injury? A. Yes.

3. Was the plaintiff, before said 20th of February, lame, as the result of such injury? A. No.

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4. Had the tibia in the plaintiff’s right leg become inflamed or diseased to some extent before he
received the blow or kick from the defendant? A. No.

5. What was the exciting cause of the injury to the plaintiff’s leg? A. Kick.

6. Did the defendant, in touching the plaintiff with his foot, intend to do him any harm? A. No.

7. At what sum do you assess the damages of the plaintiff? A. Twenty-five hundred dollars . . . .

8. [J]udgment for plaintiff, for $2,500 damages and costs of suit, was duly entered. The
defendant appeals from the judgment.

...

I. The jury having found that the defendant, in touching the plaintiff with his foot, did not intend to do
him any harm, counsel for defendant maintain that the plaintiff has no cause of action, and that
defendant’s motion for judgment on the special verdict should have been granted. In support of this
proposition counsel quote from 2 [Simon Greenleaf, A Treatise on the Law of Evidence] §83, the
rule that “the intention to do harm is of the essence of an assault.” Such is the rule, no doubt, in
actions or prosecutions for mere assaults. But this is an action to recover damages for an alleged
assault and battery. In such case the rule is correctly stated, in many of the authorities cited by
counsel, that plaintiff must show either that the intention was unlawful, or that the defendant is in
fault. If the intended act is unlawful, the intention to commit it must necessarily be unlawful. Hence,
as applied to this case, if the kicking of the plaintiff by the defendant was an unlawful act, the
intention of defendant to kick him was also unlawful. Had the parties been upon the playgrounds of
the school, engaged in the usual boyish sports, the defendant being free from malice, wantonness,
or negligence, and intending no harm to plaintiff in what he did, we should hesitate to hold the act
of the defendant unlawful, or that he could be held liable in this action. Some consideration is due
to the implied license of the playgrounds. But it appears that the injury was inflicted in the school,
after it had been called to order by the teacher, and after the regular exercises of the school had
commenced. Under these circumstances, no implied license to do the act complained of existed,
and such act was a violation of the order and decorum of the school, and necessarily unlawful.
Hence we are of the opinion that, under the evidence and verdict, the action may be sustained.

II. The plaintiff testified, as a witness in his own behalf, as to the circumstances of the alleged injury
inflicted upon him by the defendant, and also in regard to the wound he received in January, near
the same knee, mentioned in the special verdict. The defendant claimed that such wound was the
proximate cause of the injury to plaintiff’s leg, in that it produced a diseased condition of the bone,
which disease was in active progress when he received the kick, and that such kick did nothing
more than to change the location, and perhaps somewhat hasten the progress, of the disease. The
testimony of Dr. Bacon, a witness for plaintiff, (who was plaintiff’s attending physician,) p.
682elicited on cross-examination, tends to some extent to establish such claim. Dr. Bacon first saw
the injured leg on February 25th, and Dr. Philler, also one of plaintiff’s witnesses, first saw it March
8th. Dr. Philler was called as a witness after the examination of the plaintiff and Dr. Bacon. On his
direct examination he testified as follows: “I heard the testimony of Andrew Vosburg in regard to
how he received the kick, February 20th, from his playmate. I heard read the testimony of Miss
More, and heard where he said he received this kick on that day.” (Miss More had already testified
that she was the teacher of the school, and saw defendant standing in the aisle by his seat, and

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kicking across the aisle, hitting the plaintiff.) The following question was then propounded to Dr.
Philler: “After hearing that testimony, and what you know of the case of the boy, seeing it on the 8th
day of March, what, in your opinion, was the exciting cause that produced the inflammation that you
saw in that boy’s leg on that day?” An objection to this question was overruled, and the witness
answered: “The exciting cause was the injury received at that day by the kick on the shin-bone.”

It will be observed that the above question to Dr. Philler calls for his opinion as a medical expert,
based in part upon the testimony of the plaintiff, as to what was the proximate cause of the injury to
plaintiff’s leg. The plaintiff testified to two wounds upon his leg, either of which might have been
such proximate cause. Without taking both of these wounds into consideration, the expert could
give no intelligent or reliable opinion as to which of them caused the injury complained of; yet, in
the hypothetical question propounded to him, one of these probable causes was excluded from the
consideration of the witness, and he was required to give his opinion upon an imperfect and
insufficient hypothesis — one which excluded from his consideration a material fact essential to an
intelligent opinion. A consideration by the witness of the wound received by the plaintiff in January
being thus prevented, the witness had but one fact upon which to base his opinion, to-wit, the fact
that defendant kicked plaintiff on the shin-bone. Based, as it necessarily was, on that fact alone, the
opinion of Dr. Philler that the kick caused the injury was inevitable, when, had the proper
hypothesis been submitted to him, his opinion might have been different. The answer of Dr. Philler
to the hypothetical question put to him may have had, probably did have, a controlling influence
with the jury, for they found by their verdict that his opinion was correct. Surely there can be no rule
of evidence which will tolerate a hypothetical question to an expert, calling for his opinion in a
matter vital to the case, which excludes from his consideration facts already proved by a witness
upon whose testimony such hypothetical question is based, when a consideration of such facts by
the expert is absolutely essential to enable him to form an intelligent opinion concerning such
matter. The objection to the question put to Dr. Philler should have been sustained. The error in
permitting the witness to answer the question is material, and necessarily fatal to the judgment.

III. Certain questions were proposed on behalf of defendant to be submitted to the jury, founded
upon the theory 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. The court refused to
submit such questions to the jury. The ruling was correct. The rule of damages in actions for torts
was held in Brown v. Railway Co., 54 Wis. 342, 11 N. W. Rep. 356, 911, to be that the wrongdoer is
liable for all injuries p. 683resulting directly from the wrongful act, whether they could or could not
have been foreseen by him. The chief justice and the writer of this opinion dissented from the
judgment in that case, chiefly because we were of the opinion that the complaint stated a cause of
action ex contractu, and not ex delicto, and hence that a different rule of damages — the rule here
contended for — was applicable. We did not question that the rule in actions for tort was correctly
stated . . . . The judgment of the circuit court must be reversed, and the cause will be remanded for
a new trial.

COLE v. HIBBERD

1994 WL 424103 (Ohio App. 1994)

Young, J. Plaintiff-appellant, Debbie L. Cole, appeals the judgment of the Warren County Common
Pleas Court granting summary judgment in favor of defendant-appellee, Sheri L. Hibberd.

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Cole filed a personal injury complaint against Hibberd on June 11, 1993, based on an incident that
occurred on June 15, 1991. She set forth the operative facts of this action in paragraph two of her
complaint: “At said time and place, defendant negligently struck said plaintiff in the lower lumbar
area, which negligence directly caused injuries and damages hereinafter set forth.” Cole described
Hibberd’s actions more completely in her deposition taken on August 12, 1993. At the deposition,
Cole described the incident as follows:

The Hibberds had been drinking and Sheri was acting a little rambunctious. While I was standing
there leaning over, I had ahold of my daughter with one hand and my niece with the other, I was
holding them by the hand, I leaned over to look at her children in her stroller, and she hauled . . .
off and kicked me.

Hibberd’s attorney asked Cole to describe the incident in more detail, and she responded:

Well, she kicked me. And I stood up and said, damn it, Sheri, that hurt. She started laughing. And
Gary, [Hibberd’s husband] Gary called me something fowl [sic] and started laughing and thought it
was funny. And I told my husband, I said, come on. I was, I was extremely hot about it. She hurt
me.

When asked whether she believed Hibberd’s action was intentional or accidental, Cole stated:

I’d say she didn’t, she meant to kick me. I mean, she didn’t mean to hurt me, she was just horsing
around. I guess she thought it wouldn’t hurt me . . . .

No, she meant to kick me playingly, but I don’t think she meant to hurt me like she did. She
basically thought it was funny. I mean, that’s how, how she was, really.

R.C. 2305.111 establishes a one-year statute of limitations for claims involving assault and battery.
On the other hand, R.C. 2305.10 requires that an action for bodily injury must be brought within two
years after the cause arises. Cole filed her complaint more than one year, but less than two years
after June 15, 1991, the date Hibberd kicked her.

p. 684Hibberd filed a motion for summary judgment contending that her alleged actions constituted
a battery which was no longer actionable under R.C. 2305.111 since the complaint was not filed
within one year of the incident. The trial court granted Hibberd’s motion for summary judgment by
entry filed January 14, 1994.

In a single assignment of error, Cole contends that the court erred in concluding that her claim
amounted to an action in assault and battery instead of negligence.*7 Basically, Cole argues that a
genuine issue of material fact exists as to whether Hibberd made intentional, offensive contact with
Cole . . . .

In Love v. Port Clinton (1988), 37 Ohio St. 3d 98, 99-100, the Ohio Supreme Court stated that
“[w]here the essential character of an alleged tort is an intentional, offensive touching, the statute of
limitations for assault and battery governs even if the touching is pleaded as an act of negligence.
To hold otherwise would defeat the assault and battery statute of limitations.”

An individual is liable for battery when he or she acts intending to cause offensive or harmful

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contact, and such contact results. Id. at 99, citing Restatement of the Law 2d, Torts (1965) 25,
Section 13. “Offensive contact” is contact that would be offensive to a reasonable sense of personal
dignity. Id.

Cole insists that Hibberd did not act with an intention to cause harm. However, it is the intentional
nature of the contact with the plaintiff that controls the definition, not the intent to cause actual harm
or injury. See Restatement of the Law 2d, Torts (1965) 25, Section 13, Comment c.

Construing the facts most strongly in favor of Cole, this court concludes that the essential character
of her complaint is grounded in the intentional tort of assault and battery. From the evidence
presented, reasonable minds can only conclude that Hibberd intended to kick Cole. We also
conclude that Hibberd’s contact, as testified to by Cole in her deposition, would be considered
offensive to a reasonable sense of personal dignity. It is irrelevant to this determination whether or
not Hibberd intended to cause injury.

In this case, the statute of limitations for assault and battery applies over the statute of limitations
for bodily injury. Accordingly, Cole had only one year from the time of the incident, or until June 15,
1991, to file this lawsuit. The filing of this suit on June 11, 1993, was therefore untimely . . . .

Jones, P.J. (dissenting). Summary judgment was simply inappropriate. A factual question existed
with respect to Hibberd’s intentions. A jury could, would, and should find that Hibberd’s playful “kick
in the rear” was not intended to cause offensive or harmful conduct. Hibberd wasn’t assaulting her
friend Cole any more than one would “assault” a friend by slapping him on the back. Hibberd’s
“kick” was simply misdirected, striking the coccyx, and a jury could certainly conclude that such was
merely negligence. The two-year statute of limitations applies.

p. 685

NOTES AND QUESTIONS

1. The Story of Vosburg. Zigurds Zile has provided an exhaustive account of the proceedings in
Vosburg. The opinion excerpted above marked the second time that the Wisconsin Supreme Court
sent the case back for retrial on a finding of errors in the trial proceedings. (The court’s earlier
opinion found fault in the trial court’s allowance of certain testimony by a medical expert and one of
Vosburg’s relatives.) The case was tried a third time, resulting in a plaintiff’s verdict of about $1,250.
That result was upheld in a third Wisconsin Supreme Court decision, issued in 1893 (more than
four years after Putney kicked Vosburg). Given the expense associated with the protracted
litigation, it seems likely that the entire judgment was consumed by costs and attorneys’ fees.

2. Tortious Because Unlawful? The Vosburg court seemed to attach great weight to the fact that
the kick did not occur on the playground, but after class had been called to order. Because it
occurred under those circumstances, the court reasoned, the kick was “unlawful.” What does
“unlawful” mean? Is the court engaging in circular or vacuous reasoning when it states that a
defendant acts with the requisite intent to commit battery when he acts with the intent to cause an
unlawful contact?

3. Vosburg, Cole, and Horseplay. In Vosburg, the court observes that, “[h]ad the parties been
upon the play-grounds of the school, engaged in the usual boyish sports, the defendant being free
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from malice, wantonness, or negligence, and intending no harm to plaintiff in what he did, we
should hesitate to hold the act of the defendant unlawful, or that he could be held liable in this
action.” Does this passage amount to an acknowledgment that Vosburg involved nothing more than
horseplay gone awry? Would that not make Vosburg a negligence case, at most? Is Cole just
Vosburg all over again, or are there grounds for concluding that no battery was committed in Cole
even granted that Putney’s kick constituted a battery as to Vosburg?

A number of well-known battery cases have involved unintended and unexpected injuries resulting
from horseplay. In each, the defendant was held liable notwithstanding a mismatch between what
the defendant intended to happen and what actually happened to the plaintiff. See Lambertson v.
United States, 528 F.2d 441 (2d Cir. 1976) (applying New York law) (battery found where defendant
jokingly jumped on a coworker and began to ride him piggyback, causing coworker to fall onto meat
hooks); White v. University of Idaho, 797 P.2d 108 (Idaho 1990) (battery found where defendant
touched plaintiff’s back in a socially unacceptable manner so as to cause serious physical injury);
Caudle v. Betts, 512 So.2d 389 (La. 1987) (battery found where defendant supervisor jokingly
administered to employee a slight electric shock, causing an injury that required corrective surgery
and left plaintiff with permanent numbness).

An isolated but also well-known counter-example is Spivey v. Battaglia, 258 So. 2d 815 (Fla. 1972).
Battaglia playfully put his arm around his coworker Spivey’s neck and pulled her toward him. He did
this even though he apparently knew that she was shy and would not welcome the contact.
Unexpectedly, his action caused her to suffer partial facial paralysis. Spivey sued after the statute
of limitations for battery had expired but before the negligence limitations period had run. The
Florida Supreme p. 686Court held that the action sounded in negligence, not battery, and hence
was not time-barred. Its rationale was that Battaglia could not have committed a battery because
he did not knowingly or intentionally cause Spivey’s paralysis. Id. at 817.*8

As indicated by Vosburg, Cole, and the other horseplay cases cited above, insofar as Spivey
supposed that battery requires the defendant to have specifically intended to cause the particular
harmful outcome suffered by the plaintiff, it is an outlier. See also Frey v. Kouf, 484 N.W.2d 864
(S.D. 1992) (reversing a defense verdict in a battery action because of an erroneous instruction
stating that the jury could find for the plaintiff only if it concluded that the defendant threw a beer
mug at plaintiff’s head with intent to cause the injuries that the plaintiff in fact suffered). How would
the Vosburg or Cole courts have analyzed the facts of Spivey?

Imagine a newcomer to the United States who is unfamiliar with prevailing social norms, and who
violates those norms by, for example, intentionally and aggressively kissing a stranger in gratitude
for a small favor that the stranger had bestowed on the newcomer. Assume that the newcomer
meant no harm or offense and did not realize at the time that his conduct was inappropriate. Should
the stranger have a claim in battery against the newcomer? Does your answer depend on whether
the intended kiss also results in unexpected serious physical injury? How would the Vosburg court
analyze this case?

4. The “Eggshell Skull” Rule and the Distinction Between Injury and Damages. Vosburg
famously holds that “the wrongdoer is liable for all injuries resulting directly from the wrongful act,
whether they could or could not have been foreseen by him.” The defendant takes his plaintiff as he
finds him, courts often say. The basic idea is this: once the plaintiff has proved that the defendant
committed a tort upon the plaintiff (and that no applicable defense applies), the defendant is liable

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to compensate the plaintiff in a manner that approximates making the plaintiff “whole.” In some
cases — like Vosburg — the “make whole” rule supports the imposition of a surprisingly large
liability on the defendant merely because the plaintiff suffered from a hidden vulnerability. As long
as the defendant’s injuring of the plaintiff was an actionable tort, the unforeseeability of the extent of
damages flowing from the tort does not provide a ground for limiting liability. What, if anything, is
wrong with such a rule? Is it justifiable on the facts of Vosburg? More generally? Rules for damages
are discussed in Chapter 8.

5. Cole and Summary Judgment. In Cole, Hibberd’s summary judgment motion argued that a
reasonable juror faced with the undisputed facts of the case could only conclude that Hibberd
committed the tort of battery. Note the irony here: A tort defendant p. 687is attempting to defeat
liability by arguing that the evidence conclusively establishes that she has committed a tort! Does
this make any sense?

The trial judge obviously accepted Hibberd’s argument, as did a majority of the Ohio appellate court
that affirmed the trial court’s ruling. The appellate judge who dissented (Judge Jones) seems to
take the opposite view, reasoning that a jury “could, would, and should find” that there was no
battery committed, only negligence (at most). Does the very fact of the disagreement among the
appellate judges suggest that summary judgment was inappropriate? If judges can (reasonably)
disagree over whether a battery occurred, couldn’t jurors? Why were the trial court and the
appellate court majority so eager to decide the statute of limitations issue as a matter of law?

Suppose that Cole had won her appeal and the case was sent back for trial on a claim of
negligence. Would Cole have any hope of establishing that Hibberd had injured her by acting
carelessly toward her physical well-being?

6. Statutes of Limitation and the Either/Or Problem. Cole and many cases like it from other
jurisdictions seem to take as a starting point that, if the defendant’s act was a tort at all, then either
it was the tort of battery or it was the distinct tort of negligence, but not both. In fact, tort plaintiffs
are generally permitted to argue that a defendant acted in a way that amounted to the simultaneous
commission of two or more torts.*9 However, the Cole court regarded itself as forced to deal with
an either/or issue in order to give effect to the Ohio legislature’s decision to set different statutes of
limitations for different tort causes of action. In this respect, Ohio law is representative: Most states
generally set shorter time limits on the commencement of actions for intentional torts than for other
torts, such as negligence, perhaps on the thought that it is generally easier for a potential plaintiff to
know that someone has committed a battery against her than to know whether the tort of
negligence was committed against her. See Chapter 7. Does it make sense for the plaintiff in a
case like Cole to be held to the shorter statute of limitations?

7. Interplay of Intent and Offensiveness. Certain ordinary contacts that might otherwise be
deemed inoffensive as a matter of law can be rendered actionable if the defendant both knows that
the plaintiff is unusually averse to being touched in a particular way and exploits that knowledge for
the specific purpose of causing offense to the plaintiff. In such instances, the actionability of the
contact is generated in part by the particular intent behind it. Although the court did not analyze the
case specifically on these terms, the facts of Spivey v. Battaglia, Note 3, supra, arguably fit this
characterization. The Third Restatement of Torts endorses this form of liability, requiring the
defendant both to know of the plaintiff’s aversion and to act for the “primary purpose” that the
contact will be “highly offensive” to the plaintiff. See Restatement (Third) of Torts: Intentional Torts

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to Persons §3(b) (Tent. Draft No. 4, p. 688April 1, 2019). As promulgated by the ALI, §3(b) requires
the plaintiff to prove not only an intent to cause a kind of contact that is harmful or unacceptable
(the Vosburg standard), but a more specific intent to cause the plaintiff to suffer serious offense. (To
appreciate the difference between these two versions of intent, keep in mind that the Wisconsin
Supreme Court found that Putney committed battery even though there was no evidence that he
acted for the purpose of causing either harm or offense to Vosburg.) The Reporters for the
Restatement (Third) initially had proposed that a plaintiff could prevail on a battery claim merely by
establishing that the defendant touched him or her in a manner that the defendant knew the plaintiff
was unusually averse to. However, a slim majority of the ALI membership rejected this proposal as
overbroad, resulting in the inclusion of the heightened intent standard in the final version of §3(b)

Consider the following case. H, the head of human resources at a firm, recently learned that senior
employee S, with whom H has worked for many years, had inappropriately berated a staff member.
By chance, H encountered S in an office hallway. In an effort to take S aside for a conversation
about the incident, H gently placed his hand on S’s shoulder and said: “S, we need to talk. Let’s
walk over to my office.” S responded instantly and angrily: “Get your hands off me! You know that I
hate to be touched!” Assume that H indeed did know of S’s severe aversion to being touched by
another person. Does S have a viable claim for battery against H under Section 3(b)? Why or why
not? See Gerber v. Veltri, 203 F. Supp. 3d 846 (N.D. Oh. 2016) (on similar facts, entering judgment
for the defendant after a bench trial), aff’d 702 Fed App’x 423 (6th Cir. 2017).

The requirement in 3(b) that the defendant’s primary purpose was to cause serious offense leaves
it open to H to say that, even if H had an option to achieve his primary purpose (to communicate
with S) without causing serious offense to S, unless his primary purpose was to cause serious
offense, S could not complain in tort, thus leaving S at the mercy of H’s indifference. What, if
anything, would justify selecting this relatively narrow scope of liability for touching someone in a
manner one knows will offend them? Section 3(b) also offers defendants an additional safe harbor
in the form of the following caveat: “Liability under Subsection (b) shall not be imposed if the court
determines that imposing liability would violate public policy.” Under what circumstances would a
knowing contact whose primary purpose was to cause serious offense ever be justified by public
policy? And more to the point, assuming that such a circumstance might exist, why would it exist
only when the aversion which made the infliction possible was idiosyncratic?

8. Battery or Negligence? Why It Matters. Cole demonstrates one important legal consequence
that can flow from conduct being deemed an intentional tort such as battery rather than the distinct
tort of negligence, which (loosely speaking) imposes liability for harm caused carelessly rather than
intentionally. The difference between the two types of tort can be equally important in other
contexts.

Punitive damages — damages that go beyond the amount necessary to compensate the
plaintiff for losses caused by a tort — tend to be more readily available if the plaintiff can
prove an intentional tort such as battery. See Chapter 8.

p. 689As mentioned in notes following Paul v. Holbrook, courts are more likely to regard
intentional torts committed by employees as being outside the scope of employment, thereby
blocking plaintiffs’ ability to hold employers vicariously liable under the doctrine of respondeat
superior. See Chapter 8.

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Liability insurance policies tend to be written so as to exclude coverage of liabilities arising out
of intentional wrongs. See Chapter 8.

Workers’ compensation systems, which provide scheduled payments covering medical costs
and a portion of lost wages to workers who are injured on the job, bar workers from suing
their employers for injuries caused by employer negligence, but allow them to bring claims if
they have been injured by an intentional tort for which the employer is responsible. See
Chapter 11.

Tort reform statutes, which may limit the dollar amount of damages available in negligence
but not battery. For example, California’s medical malpractice tort reform statute, the Medical
Injury Compensation Reform Act (MICRA), imposes a $250,000 limitation on noneconomic
damages in any action “based on professional negligence.” As explained in Chapter 3, certain
claims for injuries resulting from the provision of medical services, including claims under the
doctrine of “informed consent,” may straddle the line between negligence and battery. Given
that MICRA applies by its terms to negligence, an informed consent plaintiff’s recovery might
vary depending on whether her claim is deemed to be for battery or negligence. See Perry v.
Shaw, 88 Cal. App. 4th 658 (2001) (surgeon performed unrequested breast enlargement
surgery during a skin reduction procedure; damages not limited by MICRA).

Wagner, the decision that follows this note, exemplifies one other important consequence of
classifying conduct as a battery rather than negligence: It affects whether an injured person suing a
government for injuries inflicted upon her can recover from the government, or whether the
government will instead be able to escape liability by arguing that the doctrine of “sovereign
immunity” applies. Sovereign immunity is discussed in greater length in Chapter 7. In short, it is the
name for the common law principle that a government entity (the United States or each of the 50
states) cannot be held liable for injuries that government employees wrongly inflict upon others in
the course of performing their official duties.

By the middle of the twentieth century, every state legislature and the United States Congress had
enacted statutes waiving their common law right to sovereign immunity. In essence they bound
themselves by legislation to being held accountable for tortious injuries inflicted by their employees
upon private parties. However, neither the state legislatures nor Congress issued a complete,
unconditional waiver; instead, each retained a certain amount of common law immunity. Utah, the
defendant in the case below, is typical in retaining immunity for injuries arising out of the intentional
torts of government employees.

Wagner therefore displays the same irony seen in Cole v. Hibberd. Usually a defendant who is
sued for battery hopes to prove that the plaintiff was not the victim of a battery. Yet in Wagner, the
State of Utah wishes to prove that its employees were responsible for a battery being committed so
that it can take advantage of the rule of retained sovereign immunity for intentional torts.

p. 690

WAGNER v. STATE

122 P.3d 599 (Utah 2005)

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Wilkins A.C.J.

¶1. Tracy and Robert Wagner seek review of the court of appeals’ ruling that the trial court properly
granted a rule 12(b)(6) motion dismissing their suit against the State.*10 The Wagners’ suit, which
sought recovery for injuries Mrs. Wagner sustained when a mentally handicapped man attacked
her while he was in the custody of state employees, was dismissed at the trial court, and affirmed
at the court of appeals, on the ground that the attack constituted a battery, a tort for which the State
has retained immunity from suit. The Wagners then petitioned this court for certiorari,**3 which we
granted. We now affirm.

Background

¶2. When reviewing a 12(b)(6) motion, we recite the facts in a light most favorable to the non-
moving party, though there is no dispute in this case as to the facts.

¶3. Tracy Wagner was standing in a customer service line at a K-Mart store in American Fork,
Utah, when she was suddenly and inexplicably attacked from behind. The Wagners’ alleged that
Sam Giese, a mentally disabled patient of the Utah State Development Center (“USDC”), “became
violent, took [Mrs. Wagner] by the head and hair, threw her to the ground, and otherwise acted in
such a way as to cause serious bodily injury to her.”

¶4. USDC employees had accompanied Mr. Giese to K-Mart as part of his treatment program and
had remained in K-Mart to supervise him. While this particular episode of violence was sudden, it
was not altogether unpredictable. Mr. Giese had a history of violent conduct and presented a
potential danger to the public if not properly supervised.

¶5. Mrs. Wagner and her husband subsequently filed a complaint against USDC and the Utah
Department of Human Services, the state agency under which USDC operates, for failing to
“properly supervise the activity of” Mr. Giese while he was in its care. Because the defendants to
this matter are all governmental entities, they moved to dismiss the complaint under Utah Rule of
Civil Procedure 12(b)(6) for failure to state a claim, arguing that Mrs. Wagner’s injuries arose out of
a battery, a tort for which p. 691the government is immune from suit. Thus, under the
Governmental Immunity Act, Utah Code Ann. §63-30-10(2) (Utah 1997) (repealed 2004), the
defendants could not be held liable for injuries arising out of the battery here. The district court
agreed with the government and dismissed the Wagners’ complaint, holding that because Giese
initiated a contact with “deliberate” intent, his attack constituted a battery and the government was
immune under the statute.

¶6. The Wagners appealed the decision to the court of appeals, arguing that the intentional tort of
battery requires proof of both an intent to make a contact and an intent to cause harm thereby, and
because Mr. Giese was mentally incompetent to formulate the intent to cause harm, his attack
could not constitute a battery as a matter of law. The defendants, on the other hand, maintained
that a person need only intend to make a harmful or offensive contact in order for that contact to
constitute a battery upon another. A person need not intend to cause harm or appreciate that his
contact will cause harm so long as he intends to make a contact, and that contact is harmful.

¶7 . . . [T]he court [of appeals] issued a memorandum opinion affirming the district court’s order of
dismissal . . . .

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Analysis

I. Governmental Immunity Act

¶10 . . . . At the time of the incident in this case, the Governmental Immunity Act read as follows:

Immunity from suit of all governmental entities is waived for injury proximately caused by a
negligent act or omission of an employee committed within the scope of employment except if the
injury arises out of . . . :

2. assault, battery, [or] false imprisonment . . . .

Utah Code Ann. §63-30-10(2) (Utah 1997) (repealed 2004).

...

¶14. The Wagners argue that Mr. Giese’s attack could not legally constitute a battery because that
intentional tort requires the actor to intend harm or offense through his deliberate contact, an intent
Mr. Giese was mentally incompetent to form. The State, on the other hand, argues that the only
intent required under the statute is simply the intent to make a contact. The contact must be
harmful or offensive by law, but the actor need not intend harm so long as he intended contact.

¶15. The outcome of this case, then, turns upon which interpretation of the definition of battery is
correct. Accordingly, we turn our attention now to the law of battery as defined in the Restatement
[(Second) of Torts].

II. The Restatement Definition of Battery

¶16. While there is some variation among the definitions of the tort of battery, Prosser and Keeton
on the Law of Torts §8, at 33-34 (W. Page Keeton et al. eds., 5th ed. 1984) (hereinafter Prosser),
Utah has adopted the Second Restatement of Torts to define the elements of this intentional tort,
including the element of intent . . . . [It] . . . reads:

p. 692An actor is subject to liability to another for battery if

1. he acts intending to cause a harmful or offensive contact with the person of the other or a
third person, or an imminent apprehension of such a contact, and

2. a harmful contact with the person of the other directly or indirectly results.

Restatement (Second) of Torts §13 (1965).

¶17. The only point of dispute in this case is whether the language of the Restatement requires Mr.
Giese to have intended not only to make physical contact with Mrs. Wagner, which the Wagners
concede he did, but also to have intended the contact to be harmful or offensive. In other words, is
a battery committed only when the actor intends for his contact to harm or offend, or is it sufficient
that the actor deliberately make physical contact, which contact is harmful or offensive by law?
Determining the answer requires a careful dissection of the elements of battery and the meaning of
intent.

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¶18. We conclude that the plain language of the Restatement, the comments to the Restatement,
Prosser and Keeton’s exhaustive explanation of the meaning of intent as described in the
Restatement, and the majority of case law on the subject in all jurisdictions including Utah, compels
us to agree with the State that only intent to make contact is necessary.

¶19. In order for a contact to constitute a battery at civil law, two elements must be satisfied. First,
the contact must have been deliberate. Second, the contact must have been harmful or offensive at
law. We hold that the actor need not intend that his contact be harmful or offensive in order to
commit a battery so long as he deliberately made the contact and so long as that contact satisfies
our legal test for what is harmful or offensive.

¶20. We first address the intent element of battery to explain our holding. Next, we discuss how the
limited legal nature of harmful or offensive contact restricts the types of contacts for which actors
may be potentially liable.

A. Legal Intent to Commit a Battery

¶21. Prosser described intent as “one of the most often misunderstood legal concepts.” Prosser,
supra, §8, at 33. Because intent is also “one of the most basic, organizing concepts of legal
thinking,” id., it is crucial that the term is properly defined and understood. We begin our analysis
with the language in the Restatement itself.

¶22. The Restatement defines a battery as having occurred where “[an actor] acts intending to
cause a harmful or offensive contact.” Restatement (Second) of Torts §13. The comments to the
definition of battery refer the reader to the definition of intent in section 8A. Id. §13 cmt. c. Section
8A reads:

The word “intent” is used throughout the Restatement of this Subject to denote that the actor
desires to cause the consequences of his act, or that he believes that the consequences are
substantially certain to result from it.

Id. §8A (emphasis added).

p. 693¶23. Although this language might not immediately seem to further inform our analysis, the
comments to this section do illustrate the difference between an intentional act and an unintentional
one: the existence of intent as to the contact that results from the act. Because much of the
confusion surrounding the intent element required in an intentional tort arises from erroneously
conflating the act with the consequence intended, we must clarify these basic terms as they are
used in our law before we analyze the legal significance of intent as to an act versus intent as to
the consequences of that act.

¶24. Section 2 of the Restatement (Second) of Torts defines the term “act” as “an external
manifestation of the actor’s will and does not include any of its results, even the most direct,
immediate, and intended.” Id. §2. To illustrate this point, the comments clarify that when an actor
points a pistol at another person and pulls the trigger, the act is the pulling of the trigger. Id. at cmt.
c. The consequence of that act is the “impingement of the bullet upon the other’s person.” Id. It
would be improper to describe the act as “the shooting,” since the shooting is actually the conflation
of the act with the consequence. For another example, the act that has taken place when one

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intentionally strikes another with his fist “is only the movement of the actor’s hand and not the
contact with the others body immediately established.” Id. Thus, presuming that the movement was
voluntary rather than spastic, whether an actor has committed an intentional or negligent contact
with another, and thus a tort sounding in battery or negligence, depends not upon whether he
intended to move his hand, but upon whether he intended to make contact thereby.

¶25. The example the Restatement sets forth to illustrate this point is that of an actor firing a gun
into the Mojave Desert. Restatement (Second) of Torts §8A cmt. a. In both accidental and
intentional shootings, the actor intended to pull the trigger. Id. Battery liability, rather than liability
sounding in negligence, will attach only when the actor pulled the trigger in order to shoot another
person, or knowing that it was substantially likely that pulling the trigger would lead to that result. Id.
§8A cmts. a & b. An actor who intentionally fires a bullet, but who does not realize that the bullet
would make contact with another person, as when “the bullet hits a person who is present in the
desert without the actor’s knowledge,” is not liable for an intentional tort. Id.

¶26. A hunter, for example, may intentionally fire his gun in an attempt to shoot a bird, but may
accidentally shoot a person whom he had no reason to know was in the vicinity. He intended his
act, pulling the trigger, but not the contact between his bullet and the body of another that resulted
from that act. Thus, he intended the act but not the consequence. It is the consequential contact
with the other person that the actor must either intend or be substantially certain would result, not
the act — pulling the trigger — itself. He is therefore not liable for an intentional tort because his
intentional act resulted in an unintended contact. On the other hand, the actor is liable for an
intentional tort if he pulled the trigger intending that the bullet released thereby would strike
someone, or knowing that it was substantially likely to strike someone as a result of his act. Id. at
cmts. a & b.

¶27. Can an actor who acknowledges that he intentionally pulled the trigger, and did so with the
intent that the bullet make contact with the person of another, defeat a battery charge if he can
show that he did . . . not intend that the contact between the p. 694bullet and the body of the
person would cause harm or offense to that person? The Wagners argue that such a showing
would provide a full defense to a battery charge because the actor lacked the necessary intent to
harm.

¶28. We agree with the Wagners that not all intentional contacts are actionable as batteries, and
that the contact must be harmful or offensive in order to be actionable. We do not agree, however,
that, under our civil law, the actor must appreciate that his act is harmful or offensive in order for his
contact to constitute a battery . . . .

¶29. The plain language of the comments makes clear that the only intent required to commit a
battery is the intent to make a contact, not an intent to harm, injure, or offend through that contact.
Restatement (Second) of Torts §13. So long as the actor intended the contact, “it is immaterial that
the actor is not inspired by any personal hostility to the other, or a desire to injure him.” Id. §13 cmt.
c . . . . The linchpin to liability for battery is not a guilty mind, but rather an intent to make a contact
the law forbids . . . .

...

¶31 . . . [T]he Restatement itself requires neither a “desire to injure” nor a realization that the

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contact is injurious or offensive. Restatement (Second) of Torts §13. Instead, the actor need only
intend the contact itself, and that contact must fit the legal definition of harmful or offensive.

¶32. Prosser echoed the Restatement when he clarified that “[t]he intent with which tort liability is
concerned is not necessarily a hostile intent, or a desire to do harm. Rather, it is an intent to bring
about a result which will invade the interests of another in a way that the law forbids.” Prosser,
supra, §8, at 36. While it may be argued that this statement means that the actor must intend that
the contact be forbidden, all ambiguity on the point is eviscerated by Prosser’s next comment, in
which he lists as one type of intentional tort the act of “intentionally invading the rights of another
under a mistaken belief of committing no wrong.” Id. §8, at 37.

¶33. Though Prosser recognizes that the plaintiff will often recover to the greatest extent “where the
[defendant’s] motive is a malevolent desire to do harm,” he nonetheless ascribes the malevolence
to motive, not intent, and labels the less culpable act of innocent invasion of another’s rights as an
intentional invasion. Id. These comments only underscore the point repeated throughout both the
Restatement and Prosser’s analysis that the only intent required is the intent to make a contact to
which the recipient has not consented . . . .

...

¶36. The Wagners’ theory is also in conflict with the majority of case law on the subject in both
federal and state courts, including Utah. [Cited authorities omitted — Eds.] While there is a dearth
of case law on this precise subject from Utah state courts, our cases that do touch upon the intent
element of battery generally support the majority rule to which we subscribe in this decision.

¶37. For instance, in Wright v. University of Utah, 876 P.2d 380, 387 (Utah Ct. App. 1994), cert.
denied, 883 P.2d 1359 (Utah 1994), the court of appeals rejected Mrs. Wright’s argument that the
autistic university employee who struck her could not have committed a battery because he lacked
the mental capacity to form the requisite intent . . . .

p. 695¶38. Describing Wright’s attempt to circumvent the governmental immunity statute by

recasting her claim as one sounding in negligence rather than battery as “fruitless, albeit creative,”
the court looked to analogous federal cases to dismantle her argument. Id. at 386-87 . . . . [T]he
court of appeals concluded that “[n]othing in the [Governmental Immunity] Act or in our case law
indicates that the distinction Wright champions was contemplated by the legislature to determine
whether immunity exists under section 63-30-10(2). The focus is on the result, not the
circumstances leading thereto.” Wright, 876 P.2d at 387.

¶39. We have also implicitly held that mental capacity is not relevant to a liability determination in
other cases involving civil battery. In Higgins v. Salt Lake County, 855 P.2d 231, 233 (Utah 1993),
the plaintiffs sued Salt Lake County for negligently supervising a mental patient who attacked and
repeatedly stabbed their ten-year-old daughter. Though the Higginses did not raise the argument
that the attacker’s insanity adjudication meant that her attack could not constitute a battery, we
found that the battery exception applied. The patient’s schizophrenia and marginal intelligence did
not persuade us that her actions could not amount to a battery for lack of requisite intent.

¶40. The Wagners correctly point out that our decision in Matheson v. Pearson, 619 P.2d 321 (Utah
1980), does not conform to the rule we have applied here. In Matheson, a maintenance man

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sustained injuries when a student threw a piece of candy from an open window at him, striking him
in the back. The only way the injured plaintiff could recover against the student for his injuries was if
the act sounded in negligence rather than battery, since the statute of limitations on battery had
already run by the time the case was filed. We held that battery requires an intent to harm, not just
an intent to make contact, and that the adolescent prank did not involve the requisite intent. Thus,
the injured maintenance man was able to proceed with his suit on a theory of negligence.

¶41. The Matheson case, however, was decided before we expressly adopted the Restatement
definition of battery, and it has been superceded by more recent case law on the subject of
intent . . . . Matheson is not a correct interpretation of the Restatement on battery and it is hereby
overruled. Instead, we ratify the position taken by the majority of federal and state courts in
rejecting the argument that the actor must intend harm or offense through his contact in order for
that contact to constitute a battery.

¶42. The discussion in Miele v. United States, 800 F.2d 50 (2d Cir. 1986), is informative on this
point. There, the Second Circuit held that the family of a child blinded and disfigured when an
insane AWOL soldier attacked him with sulphuric acid was barred by the immunity doctrine from
recovering against the government, despite the family’s argument that the insane soldier could not
form the requisite intent to commit a battery. The court held that the attacker’s mental capacity was
irrelevant to the question of whether the actor committed a battery for two reasons.

¶43. First, the government’s fault in the attack “does not change depending upon whether the
aggressor was sane or insane at the time.” Id. at 52. “While an insane employee may or may not be
less culpable personally for such attacks, the question of whether the injury was perpetrated
deliberately or accidentally does not depend upon the employee’s p. 696sanity.” Id. Second, under
the common law, “one who suffers from deficient mental capacity is not immune from tort liability
solely for that reason.” Id. at 53, (citing W.L. Prosser, The Law of Torts §135 (4th ed. 1971)). The
linchpin of an action for battery, then, is simply “the intent to make contact.” Id. Thus, the Mieles’
cause of action against the government arose out of a battery, despite the attacker’s mental
incompetency.

¶44. Though the majority rule is not without its critics, “the fact remains that ‘courts in this country
almost invariably say in the broadest terms that an insane person is liable for his torts.’” Delahanty
[v. Hinckley], 799 F. Supp. [184,] 187 [(D.D.C. 1992)] (quoting Williams [v. Kearbey], 775 P.2d [670,]
673 [(Kan. App. 1989)]). Individuals such as Mr. Giese are included in this category of liable actors
because “‘mental deficiency does not relieve [them] from liability for conduct which does not
conform to the standard of a reasonable man under like circumstances.’” Polmatier [v. Russ], 537
A.2d [468,] 470 [(Conn. 1988)] (quoting Restatement (Second) of Torts §283B). Indeed, the
Restatement provides that, for the sane but mentally deficient, “no allowance is made, and the
actor is held to the standard of conduct of a reasonable man who is not mentally deficient, even
though it is in fact beyond his capacity to conform to it.” Restatement (Second) of Torts §283B cmt.
c.

¶45. Otherwise, the law would err on the side of protecting actors who voluntarily make physical
contacts with other people, producing injury or offense, from liability for their deliberate action. The
result would be that the victims who were subjected to a harmful or offensive physical contact are
at the mercy of those who deliberately come into contact with them, and must bear the costs of the
injuries inflicted thereby. The practical consequences of such an interpretation would turn the law of

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our civil liability on its head.

¶46. For example, a man who decides to flatter a woman he spots in a crowd with an unpetitioned-
for kiss, one of the examples of battery Prosser provides, Prosser, supra, §9, at 41-42, would find
no objection under the Wagners’ proposed rule so long as his intentional contact was initiated with
no intent to injure or offend. He would be held civilly liable for his conduct only if he intended to
harm or offend her through his kiss. A woman in such circumstances would not enjoy the
presumption of the law in favor of preserving her bodily integrity; instead, her right to be free from
physical contact with strangers would depend upon whether she could prove that the stranger
hoped to harm or offend her through his contact. So long as he could show that he meant only
flattery and the communication of positive feelings towards her in stroking her, kissing her, or
hugging her, she must be subjected to it and will find no protection for her bodily integrity in our civil
law.

¶47. The law would serve to insulate perpetrators of deliberate contact from the consequences
their contact inflicts upon their victims. Bodily integrity would be secondary to protecting a
perpetrator’s right to deliberately touch another person’s body without being accountable for the
consequences that contact occasioned. The “harmful or offensive” element would, in essence, be
viewed from the perspective of the actor, not the objective eye of the law. Under this rule, so long
as the actor does not deem his deliberate contact to be harmful or offensive, he may touch others
however he wishes without liability under our law of battery. It is clear that the purpose of our civil
law on battery was designed to create the opposite incentive.

p. 697¶48. The objection can be raised that such a theory of liability as we posit today expands
liability beyond all reasonable bounds. Perhaps a handshake or other similar gesture will now
expose a person to a lawsuit for battery if he happens to unknowingly shake the hand of an
unwilling individual. The Restatement, however, and Prosser’s analysis thereof, yields this objection
wholly without basis.

¶49. We must bear in mind that not all physical contacts deliberately initiated constitute batteries,
only harmful or offensive ones. Though it is true that the actor need not appreciate that his contact
is, nor need he intend it to be, harmful or offensive in order for it to be so and for him to be
accountable for the injuries he inflicted by his intentional contact, the contact must in fact be
harmful or offensive in order to constitute a battery.

¶50. We now explain that the legal test for harmful or offensive contact preserves the
Restatement’s purpose of protecting the bodily integrity of individuals from invasion while still
recognizing the practical realities of our physical world and the inevitable contacts therein. Because
“harmful or offensive contact” is determined objectively by the law, only those deliberate contacts
that meet the legal test for harmful or offensive will constitute batteries.

B. Harmful or Offensive Contact at Law

¶51 . . . [H]armful or offensive contact is not limited to that which is medically injurious or
perpetrated with the intent to cause some form of psychological or physical injury. Instead, it
includes all physical contacts that the individual either expressly communicates are unwanted, or
those contacts to which no reasonable person would consent.

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¶52. What is not included in this definition are the uncommunicated idiosyncratic preferences of
individuals not to be touched in ways considered normal and customary in our culture . . . .

¶53. As Prosser notes in his analysis on the subject, “in a crowded world, a certain amount of
personal contact is inevitable, and must be accepted. Absent expression to the contrary, consent is
assumed to all those ordinary contacts which are customary and reasonably necessary to the
common intercourse of life.” [Id. §9, at 42.] Among the contacts Prosser noted as part of this
common intercourse were: “a tap on the shoulder,” “a friendly grasp of the arm,” and “a casual
jostling to make a passage.” Id. Thus, the tort of battery seeks to strike a balance between
preserving the bodily integrity of others and recognizing and accommodating the realities of our
physical world.

...

¶57. As already explained, the law of torts, and battery in particular, was designed to protect people
from unacceptable invasions of bodily integrity. Taking into account the realities of our physical
world, and the physical contacts that are not only inevitable, but are part of our cultural customs,
there are limits to the physical contacts from which the law will protect us. The law assumes
consent as to all regular and culturally acceptable contacts. Certain contacts from very young
children fall into this category primarily because most contacts from very young children are not
medically injurious given their relative physical weakness and their standing in our society.

p. 698¶58. Not so with mentally handicapped adults. Even if the adult had the mental capacity of a
small child, the difference in size and strength would make any attempt at an analogy between
societal consent to a baby’s contact and societal consent to attacks at the hand of such an adult
wholly unreasonable. Clearly, society has not simply consented to violent contacts from the
mentally handicapped. Under the Restatement, as long as a person, mentally handicapped or not,
intended to touch the person of another, and the touch was a harmful or offensive one at law, he
has committed a battery, and the price of the injuries he inflicted must be paid out of his, or his
caretaker’s, pockets.

...

¶60 . . . [I]t is not an element of [battery] that the actor appreciate that the contact is unwanted. His
mental incompetence may insulate him from criminal liability because the mental handicap may
negate the mens rea requirement, but the same level of intent is not required for civil liability to
attach.

¶61. [I]f we were to adopt the rule urged by the Wagners, we would be contorting the law in order to
provide recovery in this isolated instance. Yet, in doing so, we would be contracting the recoveries
of all other plaintiffs victimized by insane or mentally handicapped individuals who are suing a non-
State entity, and, in the process, limiting the protection of the bodily integrity of everyone.

...

¶63. We recognize that, in this instance, the retained immunity doctrine bars the caretakers of such
a handicapped person from taking responsibility for the conduct of their charge. It is unfortunate,
and perhaps it is improvident of the State to retain immunity in this area. But it is not our role as a

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judiciary to override the legislature in this matter; it is for us only to interpret and apply the law as it
is. We will not limit the recoveries of all other plaintiffs similarly injured by defining the tort of battery
in such a way as to make it far more burdensome for plaintiffs to satisfy its elements and recover,
nor will we distort the plain language of the Restatement so as to elevate an actor’s “right” to
deliberately touch others at will over an individual’s right to the preservation of her bodily integrity.

Conclusion

¶64. Applying the rule we have laid out today to the facts of this case, it is clear that Mr. Giese’s
attack constituted a battery upon Mrs. Wagner. There is no allegation that his action was the result
of an involuntary muscular movement or spasm. Further, the Wagners concede that Mr. Giese
affirmatively attacked her; they do not argue that he made muscular movements that inadvertently
or accidentally brought him into contact with her.

¶65. The fact that the Wagners allege that Mr. Giese could not have intended to harm her, or
understood that his attack would inflict injury or offense, is not relevant to the analysis of whether a
battery occurred. So long as he intended to make that contact, and so long as that contact was one
to which Mrs. Wagner had not given her consent, either expressly or by implication, he committed a
battery. Because battery is a tort for which the State has retained immunity, we affirm the court of
appeals’ decision to dismiss the case for failure to state a claim.

[Concurring opinion omitted — Eds.]

p. 699

NOTES AND QUESTIONS

1. Intent to Cause Contact (With a Person)? The Wagner court holds that the only intent required
to commit a battery is an intent to cause contact with a person, rather than intent to cause contact
of a certain type. This is a relatively capacious conception of intent, in that it allows for a broad
array of contacts to count as batteries. Still, it is not without limits. Suppose that Giese was so
delusional that, when he attacked Wagner, he actually believed that he was interacting with a tall
plant. Would this count as “intent to contact,” or does the Wagner standard presuppose that the
defendant must at least have acted with the intent to contact another human being?

2. Vosburg and Wagner. In Reynolds v. MacFarlane, 322 P.3d 755 (Utah App. 2014), the plaintiff
was standing in the breakroom at his workplace, holding a $10 bill loosely in his hand. The
defendant, a coworker, came up from behind and snatched the bill from plaintiff’s hand. The
defendant jokingly said “that was too easy,” then handed the bill back to the plaintiff. The plaintiff
proceeded to punch the defendant. Despite the incident, the two interacted on friendly terms later
that day and subsequently. However, the plaintiff was disciplined by his employer and later claimed
that the bill-snatching incident caused him anxiety. He eventually sued the defendant for battery.
The trial court dismissed the suit, but the appellate court, applying Wagner and the extended
personality doctrine, concluded that the defendant had committed a battery by intentionally
grabbing the bill from the plaintiff’s hand. It also concluded that the plaintiff was entitled only to an
award of nominal damages. (See Chapter 8.) Did the appellate court properly apply Wagner?
Would the defendant’s snatching of the bill from the plaintiff be a battery under Vosburg?

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3. ”Single” Intent, “Dual” Intent, or Something in Between? The Wagner court’s decision to
adopt an “intent-to-contact” standard seems to have been driven by its sense that any other
standard would, in light of Giese’s limited mental capacity, require the conclusion that his attack
was not a battery. Like Wagner, the Third Restatement’s intentional tort provisions favor an intent-
to-contact standard. In these provisions, the intent-to-contact standard is described as a “single
intent” standard. According to the Restatement’s Reporters, the alternative, “dual intent” standard
— which would require the defendant to intend both to make contact with another and to cause
offense or harm by making contact — is less well supported by case law and is not sufficiently
protective of victims’ bodily autonomy. In particular, the Reporters have expressed concern that
actors who are boorish or clueless about the offensiveness or harmfulness of certain kinds of
contact will avoid liability under a dual intent standard by establishing that they lacked any intent to
harm or offend. Restatement (Third) of Torts: Intentional Torts to Persons §102, cmt. b (Tent. Draft.
No. 1, April 8, 2015).

Are Wagner and the draft Restatement correct in supposing that the only plausible alternative to an
intent-to-contact standard (so-called “single intent”) is a standard that requires proof that the
defendant intended to harm or offend (so-called “dual intent”)? Or is there an intermediate position
between these? Recall that Vosburg and Cole affirmed findings of battery notwithstanding that in
each there was a mismatch between the sort of contact the defendant intended and what actually
happened to the p. 700plaintiff. Did those courts find it necessary to rely on an intent-to-contact
standard? If not, what alternative standard did they adopt? If they did adopt an alternative standard,
could the Wagner court have adopted it and still deemed Giese’s attack a battery? On what factual
findings?

4. Intent and Implied Consent. The Utah Supreme Court concedes that its decision to adopt an
intent-to-contact standard threatens to render a good deal of everyday conduct tortious. Can you
see why? How does it confront that concern? What does it mean for the court to say that each of
us, by going out into shared spaces, has “implicitly” consented to certain contacts? How has that
consent been manifested? (You may want to review what the court in Vosburg said about the
“implied license” of the playground.) How may implied consent be withdrawn? Actual consent as a
defense to battery is considered in more detail in Section III, infra.

5. Insanity in Tort and Criminal Law. Wagner holds that a deranged person with a diagnosed,
severe mental illness is capable of forming the requisite intent to commit battery. In doing so,
Wagner states the black letter rule. Some courts, however, have qualified or rejected this rule. See,
e.g., White v. Muniz, 999 P.2d 814 (Colo. 2000) (en banc) (jury may find that an Alzheimer’s
sufferer who punched her caregiver committed battery only if it finds that she had the capacity to
appreciate that such contact would be harmful or offensive). As the court notes in paragraph 60 of
its opinion, this feature of tort law is one that distinguishes it from criminal law, which deems
insanity to be a complete defense to charges of criminal assault, murder, etc. Why should tort law
be less forgiving of an actor’s serious mental illness than criminal law? As suggested in Note 1,
supra, there probably are some limits to the willingness of courts to deem severely delusional
persons liable for battery (raising the hypothetical case of a defendant who does not realize he is
making contact with another person).

6. Degrees of Mental Incapacity. For claims of batteries brought against very young children, the
general rule is that the factfinder (usually the jury) must determine whether the particular minor
being sued was capable of forming the requisite intent and acted with such intent. See, e.g.,
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Weisbart v. Flohr, 67 Cal. Rptr. 114 (Ct. App. 1968) (given trial testimony concerning the seven-
year-old defendant’s capacities and his state of mind when he shot the plaintiff with an arrow, the
trial court should have entered judgment for the plaintiff on the ground that the defendant
committed battery as a matter of law). Should not the same rule apply for adults with serious
mental illnesses? At least one court has suggested so. Edwards v. Stills, 984 S.W.2d 366 (Ark.
1998) (insanity is not generally a defense in tort but can be invoked to defeat liability if the actor’s
mental incapacity renders him incapable of maintaining the intent necessary to establish liability).

7. Scope and Rationale of Governmental Immunity for Intentional Wrongs. The Utah Supreme
Court applied the Government Immunity Act as it existed at the time of the events underlying the
litigation — Utah Code Ann. §63-30-10(2) (Utah 1997) — while noting parenthetically that, by the
time its opinion was issued in 2005, the statute had been repealed. The “(repealed)” parenthetical
is somewhat misleading, p. 701however, because the new immunity statute that replaced the
repealed statute contains the same exception. See Utah Code Ann. §63-30d-301(5)(b) (Utah 2004)
(“immunity . . . is not waived . . . if the injury arises out of, in connection with, or results from: . . .
(b) assault, battery, . . . ”).

Is there a legitimate rationale for this exception? It is perhaps easy enough to understand why a
state would not want to be held liable for a state employee’s batteries, because an employee who
intentionally strikes someone will frequently be acting in ways that have nothing to do with the
performance of her official duties. However, as applied to the facts of Wagner, the exception is
playing a rather different role. Here the battery was committed by a person in state custody, and the
nub of the Wagners’ claim against the state is that its employees acted carelessly by failing to use
sufficient care to prevent that person from committing battery. Is the Utah Supreme Court right to
conclude that it would be exceeding its legitimate authority as a court if it were to interpret the
Governmental Immunity Act so as to permit the imposition of liability in cases such as Wagner?
When faced with essentially the same interpretive question in connection with the Federal Tort
Claims Act (FTCA) — a statute that partially waives the federal government’s common law
sovereign immunity, and on which Utah’s governmental immunity statute was modeled — the
United States Supreme Court concluded, contrary to Wagner, that the FTCA’s recognition of
continued immunity for injuries arising out of batteries does not extend to a claim alleging that
government employees were negligent in failing to prevent a battery from taking place. Sheridan v.
U.S., 487 U.S. 392 (1988).

3. Intent and Knowledge to a Substantial Certainty

To say that battery is an intentional tort is to conjure up the image of conduct that is undertaken by
a defendant who means to make contact with another. Vosburg, Cole, and Wagner seem all to
have involved intent of this sort. In each case, the actor alleged to have committed battery meant to
cause contact with the plaintiff. However, modern courts and commentators have tended to define
the intent element of battery — as well as of assault, false imprisonment, and intentional infliction of
emotional distress — so as to capture certain cases that do not on their face involve this sort of
purposiveness. The notes that follow describe this aspect of intentional tort doctrine, in which
courts recognize liability based on the defendant’s knowledge, at the time of acting, that her
conduct would cause a certain kind of contact.

1. Garratt v. Dailey. In Garratt v. Dailey, 279 P.2d 1091 (Wash. 1955), the defendant Brian Dailey
— who was just shy of six years old — pulled a chair out from under his aunt as she began to sit in

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it. As a result, she fell and broke her hip. At a bench trial of the aunt’s battery claim against Brian,
Brian testified that he had moved the chair before realizing that his aunt was about to sit down on it,
then hurriedly (and unsuccessfully) tried to move it back under her. Based on this testimony, the
judge found for Brian.

On appeal, the Washington Supreme Court reversed and remanded for clarification, relying in part
on comment d to Section 13 of the First Torts Restatement. That comment read as follows:

p. 702Character of actor’s intention. In order that an act may be done with the intention of bringing
about a harmful or offensive contact . . . to a particular person . . . the act must be done for the
purpose of causing the contact . . . or with knowledge on the part of the actor that such contact
. . . is substantially certain to be produced.

Restatement (First) of Torts §13, cmt. d, at 29 (1934) (emphasis added). According to the court, on
the facts found by the trial judge, Brian could have committed a battery under the “knowledge”
prong of comment d’s test for intent. Upon remand, the trial court found that Brian was
“substantially certain” that his aunt would fall as a result of his moving the chair, and therefore
imposed liability. That decision was affirmed by the Washington Supreme Court.*11 304 P.2d 681
(Wash. 1956).

Comment d’s rule was incorporated, with certain changes, into Section 8A of the Second Torts
Restatement. The Third Restatement’s provisions on “Liability for Physical and Emotional Harm” —
which focus primarily on negligence — offer a general definition of the concept intent in line with
earlier Restatements. See Restatement (Third) of Torts: Liability for Physical and Emotional Harm
§1 (2010) (“A person acts with the intent to produce a consequence if: (a) the person acts with the
purpose of producing that consequence; or (b) the person acts knowing that the consequence is
substantially certain to result.”).

2. In What Sense(s) Does Knowledge Establish Intent? Suppose D is certain that her actions
will cause P to suffer the requisite kind of contact. Does D’s certainty establish that D intended to
cause that contact? Or is this a distortion of the concept of intent?

Imagine that D is driving her car in a crowded urban area when suddenly, and through no fault of
her own, her car’s brakes completely fail. D realizes that, unless she changes course, she is certain
to strike the small child lawfully crossing the street in front of her. To avoid that outcome she steers
toward the nearest sidewalk, on which is located a crowded sidewalk café. In doing so, she runs
into and injures P, a patron of the café. Assume that D knew to a certainty that by changing
direction she would strike and injure P. In morality and law, this hypothetical raises a difficult
question as to whether D was ultimately justified in changing course. Regardless of how one
resolves that question, there is a conceptually prior issue of whether it is correct to say that D
intended to cause harmful or offensive contact with P simply because D knew that her action would
result in such contact. Does the idea of an actor intending an outcome necessarily include some
notion that the actor desired that outcome to come about?

p. 703Suppose that, as a philosophical matter, it is a mistake to equate acting in the knowledge that
an outcome will result with intending that outcome. Might there nonetheless be justification for the
law’s recognition of proof of knowledge as sufficient to establish the intent element of torts such as
battery and assault? For example, does proof of the defendant’s certainty about the outcome allow

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the factfinder to infer that the defendant acted for the purpose of causing the outcome? If so, can
the defendant rebut the inference? How? See Travis v. Dreis & Krump Mfg. Co., 551 N.W.2d 132
(Mich. 1996) (proof that plaintiff’s employer had actual knowledge that injury to the plaintiff was
certain to occur as a result of the employer’s conduct creates an inference that the employer acted
for the purpose of injuring the plaintiff).

Alternatively, is the law entitled to treat a defendant who acts in the knowledge that his conduct will
cause an outcome as if she had acted for the purpose of causing that contact? See Restatement
(Second) of Torts §8A, cmt. b (1965) (“If the actor knows that the consequences are . . .
substantially certain . . . to result from his act, and still goes ahead, he is treated by the law as if he
had in fact desired to produce the result.”) (emphasis added). Is this because acting in the near-
certain knowledge that one will cause the requisite outcome is as culpable as acting with the intent
to cause it?

3. Knowledge: Subjective or Objective Standard? The knowledge requirement for intentional

torts establishes a subjective rather than an objective standard. This means that the defendant
actually must know to a near certainty that his or her conduct is going to produce the requisite
result. Restatement (Third) of Torts: Liability for Physical and Emotional Harm §1, cmt. c (2010) (“a
mere showing that harm is substantially certain to result from the actor’s conduct is not sufficient to
prove intent; it must also be shown that that actor is aware of this”).

Suppose that host H serves store-bought food to guest G. Unbeknownst to G, the food contains
nuts, to which G is very allergic. G eats the food and has a severe allergic reaction. If H actually
knew that the food contained nuts and that G was allergic to them, he has committed a battery.
However, if H was ignorant of either of these facts, he has not committed a battery — he did not act
for the purpose of inducing an allergic reaction in G, nor was he certain that his conduct would do
so. Perhaps a reasonable person in H’s position should have known that the food contained nuts
and that G was allergic to them. If so, H may be subject to liability for negligence, not battery.*12

State workers’ compensation statutes provide scheduled damages to employees who are injured in
workplace accidents but, in return, bar negligence suits for such accidents. However, as mentioned
in the note prior to Wagner, this bar on litigation does not extend to intentional torts committed in
the workplace. In defining “intentional torts” in this context, the Florida Supreme Court employed an
“objective” substantial certainty standard, according to which an employer could be deemed to
have committed a battery if a worker were injured as a result of workplace conditions that a
reasonable person p. 704would recognize as substantially certain to cause injury. Turner v. PCR,
Inc., 754 So. 2d 683 (Fla. 2000). In 2010, the Florida legislature responded to Turner by amending
the state’s workers’ compensation statute. Under that amendment, an employee can bypass the
workers’ compensation system and bring a tort suit against an employer for a workplace injury only
if the employer “intended” to injure the employee or “engaged in conduct that the employer knew,
based on prior similar accidents or explicit warnings specifically identifying a known danger, was
virtually certain to result in injury or death to the employee . . . .” R.L. Haines Constr., LLC v.
Santamaria, 161 So.3d 528 (Fl. Ct. App. 2014) (suggesting that the amendment was meant to
narrow the intentional tort exception to the workers’ compensation bar on litigation).

4. Knowledge Versus Foresight. Roughly speaking, the tort of negligence requires actors to take
care against causing injuries that one can foresee might result from one’s careless conduct. It is
very important not to confuse the negligence concept of foreseeability with the intentional-tort

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concept of knowledge. A plaintiff suing for battery does not establish the defendant’s intent merely
by proving that the defendant appreciated or should have appreciated that his actions posed a risk
of harmful or offensive contact to others. Rather, the plaintiff must establish that the defendant
actually knew that his actions would cause such contact.

German Mut. Ins. Co. v. Yeager, 554 N.W.2d 116 (Minn. Ct. App. 1996), illustrates this point.
Yeager, a teenager, demonstrated a homemade bomb to his friends by tossing it over his shoulder,
away from where they were sitting. Despite this precaution, shrapnel from the bomb severely
injured one of them. Yeager’s insurer sought to deny coverage for any tort liability Yeager might
incur to his friends on the ground that Yeager’s act was “intentional” and thus excluded from
coverage under the terms of his insurance policy. The appellate court rejected this argument,
noting that while Yeager clearly was aware of the risks of harm associated with his conduct, he was
not substantially certain that someone would be injured by it. Indeed, he quite clearly acted in the
belief that no one would get hurt. Thus, his conduct was an instance of carelessness or
recklessness, rather than a battery.

5. Knowledge: Sufficient, Not Necessary. Proof that the defendant knew his act would cause a
harmful or offensive touching is sufficient but not necessary to satisfy the intent element. It is not
necessary because the plaintiff can prove intent by proving that the defendant acted for the
purpose of causing such a touching, even if he did not know that his conduct would have that
effect, a point illustrated by the following hypothetical.

Suppose that T is an inept darts player. While playing darts in a bar, T spots his enemy E standing
near the darts board. T throws the dart at E, very much hoping it will spear E in the leg. T is not
certain that the dart will hit E. Indeed, given his ineptitude, he has every reason to believe that the
dart will not hit E. If, nonetheless, the dart miraculously does hit E, T will have committed a battery
because he acted for the purpose of causing a harmful (if improbable) contact with T and caused
such a contact.

6. Knowledge and Ongoing Activities. The knowledge “prong” of the intent element of torts such
as battery most obviously applies when the defendant is nearly p. 705certain that his conduct will
result in the requisite consequence for the plaintiff. Should it also be satisfied if the defendant
knows to a certainty that, by virtue of its ongoing conduct, someone, sooner or later, will be hurt?

For example, suppose delicatessen owner O knows that, in each of the last five years, he has sold
10,000 cups of piping hot coffee in Styrofoam cups. Suppose O also knows that, in each of these
years, two customers have suffered severe burns because of leaky cups. Now suppose that, in the
current year, customer C is scalded and sues O for battery. In a statistical and predictive sense O
was perhaps substantially certain that his conduct — selling coffee in the manner that he did —
would (eventually) cause a harmful touching to someone. Yet it does not necessarily follow that he
has committed battery against C. Rather, one could argue that if O has wronged C, it is because he
acted carelessly toward C, or perhaps with reckless indifference to C’s physical well-being.

The choice between these alternative descriptions of O’s conduct can have great practical
significance. For example, as mentioned in Chapters 4 and 8, employees who suffer workplace
injuries because of dangerous working conditions are usually required by state statute to file a
claim for workers’ compensation benefits and are barred from suing in tort for negligence. While
this arrangement tends to confer certain benefits on workers (including a no-fault liability standard

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and faster claims processing), it can also result in substantially smaller recoveries. Notably, the
same statutes that bar negligence suits for workplace injuries typically exclude intentional tort
claims. Thus, insofar as an employer’s knowledge that its operations will eventually cause injury to
some employee suffices to establish intent, a wide range of workplace injuries could fall within the
intentional torts exception and hence outside workers’ compensation schemes.

Courts have split over whether “statistical” knowledge is sufficient to establish intent. That split is
related to the split, discussed above, over whether to treat knowledge as sufficient in its own right
to generate liability for battery, or instead to view it as circumstantial evidence of purpose. The latter
view, in particular, can help capture why statistical knowledge strikes some courts and
commentators as insufficient to prove intent. Simply put, it is very implausible to infer a purpose to
cause a harmful touching from mere statistical knowledge. For example, there is little, if any, reason
to suppose that hypothesized deli owner O acted out of a desire to harm his customers. More likely,
he regarded these incidents as a matter for regret. To point this out is not to say that O acted
appropriately, nor to assert that O is immune from liability for a tort other than battery, such as
negligence. It is only to observe that his willingness to act in a manner that subjects a small number
of customers per year to serious burns does not amount to conduct undertaken for the purpose of
causing harmful touchings of those persons.

B. Assault

Recorded instances of English assault pleas date back at least to the fifteenth century. As
explained in the case below, the interest vindicated by the action for assault is that of not being put
in apprehension of imminent harmful or offensive contact. Assault, p. 706like battery, thus derives
from a concern to protect individual bodily integrity. However, assault differs from battery because it
gives effect to that right by protecting against certain apprehensions of contact, rather than contact
itself.

A prima facie case of assault can be defined as follows:

Assault: Prima Facie Case

Actor A is subject to liability to other person P for assault if:

1. A acts,

2. intending to cause in P the apprehension of an imminent harmful or offensive contact with P;

and

3. A’s act causes P reasonably to apprehend such a contact.*13

One occasionally sees assault described as an “attempted battery,” or as a “failed” or “inchoate”

battery. These formulations can be misleading. As the cases below demonstrate, a person can be
the victim of an assault that is not a battery. Likewise, a battery need not include an assault, as is
the case with respect to batteries committed on unconscious plaintiffs, or surreptitious batteries,
such as poisonings. Moreover, an assault might arise from an attempt at battery, but it need not.
For example, the defendant’s purpose may have been all along to scare rather than touch the
plaintiff.

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An assault is also not properly described as an action for an inchoate — that is, unrealized or
incomplete — battery. Rather, an assault is a suit for a fully realized wrong, one that is completed
when the requisite apprehension is generated in the victim. In this respect, the law of assault differs
fundamentally from the criminal law, which sometimes criminalizes failed efforts to commit other
crimes. Suppose, for example, S fires a loaded gun equipped with a silencer intending to shoot and
kill V, but misses his target. V, for her part, is completely oblivious to the attempt. By happenstance,
S’s conduct is observed by a witness who reports S’s behavior to the police. S can be convicted of
attempted murder, but V has no action against S for assault.

BEACH v. HANCOCK

27 N.H. 223 (1853)

TRESPASS, for an assault.

. . . [I]t appeared that the plaintiff and defendant, being engaged in an angry altercation, the
defendant stepped into his office, which was at hand, and brought out a gun, which he aimed at the
plaintiff in an excited and threatening manner, the plaintiff p. 707being three or four rods distant.*14
The evidence tended to show that the defendant snapped the gun twice at the plaintiff, and that the
plaintiff did not know whether the gun was loaded or not, and that, in fact, the gun was not loaded.

The court ruled that the pointing of a gun, in an angry and threatening manner, at a person three or
four rods distant, who was ignorant whether the gun was loaded or not, was an assault, though it
should appear that the gun was not loaded, and that it made no difference whether the gun was
snapped or not . . . .

The jury, having found a verdict for the plaintiff, the defendant moved for a new trial . . . .

Gilchrist, C.J. . . . One of the most important objects to be attained by the enactment of laws and
the institutions of civilized society is, each of us shall feel secure against unlawful assaults. Without
such security society loses most of its value. Peace and order and domestic happiness,
inexpressibly more precious than mere forms of government, cannot be enjoyed without the sense
of perfect security. We have a right to live in society without being put in fear of personal harm. But
it must be a reasonable fear of which we complain. And it surely is not unreasonable for a person to
entertain a fear of personal injury, when a pistol is pointed at him in a threatening manner, when, for
aught he knows, it may be loaded, and may occasion his immediate death. The business of the
world could not be carried on with comfort, if such things could be done with impunity.

We think the defendant guilty of an assault, and we perceive no reason for taking any exception to
the remarks of the court . . . .

BROOKER v. SILVERTHORNE

99 S.E. 350 (S.C. 1919)

Hydrick, J. Defendant appeals from judgment for plaintiff for $2,000 damages for mental anguish
and nervous shock alleged to have been caused by abusive and threatening language addressed

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to plaintiff by defendant over the telephone.

Telephone exchange operators, 1952

Plaintiff alleges: That on October 27, 1916, she was night operator at the telephone exchange at
Barnwell. That defendant called the exchange over the telephone and asked for a certain
connection, which she promptly tried to get for him, but, upon her failing to do so, he cursed and
threatened her in an outrageous manner, saying to her: “You God damned woman! None of you
attend to your business.” That she tried to reason with him, telling him that she had done all that
she could to get the connection he wanted, but he continued to abuse and threaten her, saying to
her: “You are a God damned liar. If I were there, I would break your God damned neck.” That the
language and threat of defendant put her in great fear that he would come to the exchange and
further insult her, and that she was so shocked and unnerved that p. 708she was made sick and
unfit for duty, and had to take medicine to make her sleep. That for weeks afterwards, when
defendant’s number would call, she would become so nervous that she could not answer the call.
And that her nervous system was so shocked and wrecked that she suffered and continues to
suffer in health, mind, and body on account of the abusive and threatening language addressed to
her by defendant . . . .

Although it cannot affect the decision, because the truth of the facts alleged is concluded by the
verdict, it is nevertheless due to the defendant to say that he denied emphatically using the
language attributed to him, and his denial was corroborated by the testimony of his wife and a
lineman of the telephone company. Defendant testified, also, that, on hearing that plaintiff was
offended, he went to her and told her that he did not intend to say anything to offend her, and did
not remember having done so, and asked her what he had said that offended her, and she replied

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that he had spoken a little harshly to her; that he told her he did not remember having done so, but,
if she thought so, he was very sorry, and she seemed to be satisfied with this apology. This
conversation was not denied by plaintiff.

The question is whether plaintiff stated or proved a cause of action. That question was decided in
the negative in Rankin v. Railroad Co., 58 S.C. 532, 36 S.E. 997. In that case, Mrs. Rankin alleged
that the railroad company’s agents trespassed upon her premises, and were about to cut down
some trees of great value and beauty, and, when she approached them and requested them not to
do so, the foreman of the gang “cursed her and ordered her to get away from there, or he would put
her in the penitentiary, and threatened to strike her, she being an old woman, and otherwise
maltreated and abused her to her great damage.” A demurrer to this complaint was sustained. The
court considered the complaint as having attempted to set forth two causes of action, one for
trespass on the plaintiff’s property, and the other for the abusive and threatening language. After
showing that no cause of action for trespass was stated, the question whether an action would lie
for the abusive and threatening language was considered, and it was held that it would not . . . .

Big Think

Appellate Review

The South Carolina Supreme Court acknowledges that it had no grounds for second-guessing the
jury’s factual findings. This is typical. When appellate courts review trial court rulings, they usually
do so by adopting the interpretation of the facts that is most favorable to the appellee. Here, the
jury clearly declined to credit Silverthorne’s testimony, as well as corroborating testimony from his
wife and a telephone lineman. Why, then, does the court bother to mention that testimony?
Relatedly, why does the court mention Silverthorne’s apology? Does the apology have any
relevance to the question of liability for assault? If so, is it relevant in a way that would allow an
appellate court to take into account?

p. 709The circuit court rested its conclusions in part upon the following quotations from Cooley on
Torts:

“An act or omission may be wrong in morals, or it may be wrong in law. It is scarcely necessary to
say that the two things are not interchangeable. No government has undertaken to give redress
whenever an act was found to be wrong, judged by the standard of strict morality; nor is it likely that
any government ever will.” Cooley on Torts, p.3.

“A threat to commit an injury is also sometimes made a criminal offense, but it is not actionable
private wrong. Many reasons may be assigned for distinguishing between this case and that of an
assault, one of them being that the threat only promises a future injury, and usually gives ample
opportunity to provide against it, while an assault must be resisted on the instant. But the principal
reason, perhaps, is found in the reluctance of the law to give a cause of action for mere words.
Words never constitute an assault, is a time-honored maxim. Words may be thoughtlessly spoken;
they may be misunderstood; they may have indicated to the person threatened nothing but
momentary spleen or anger, though when afterwards reported by witnesses they seem to express
deliberate malice and purpose to injure . . . . And comparing assaults and threats, another important
difference is to be noted: In the case of threats, as has been stated, preventive remedies are
available; but against an assault there are usually none beyond what the party assaulted has in his

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own power of physical resistance.” Cooley on Torts, p.29.

The plaintiff in this case relies upon the case of . . . Lipman v. R. Co., 108 S.C. 151, 93 S.E. 714,
L.R.A. 1918A, 596 in which it was held that a carrier is liable in damages for abusive language
addressed to a passenger by the carrier’s servants. It was pointed out in [that case] that the ground

ED
of the carrier’s liability for abusive language to a passenger is exceptional, on account of the
special and peculiar relations, obligations, and duties existing between carrier and passenger,

IT
which differ in kind and degree from almost every other legal or contractual relation, since the
carrier is in duty bound to protect his passengers from assault or insult by his servants, and to

IB
afford them courteous and respectful treatment. When the ground of liability is considered, the want
of analogy between [that case] and this becomes apparent, for the defendant in this case was

H
under no legal or contractual obligation or duty to protect the plaintiff from insult, abusive language,

O
or assault. Every decision has tacit reference to the facts and circumstances of the case decided.

PR
Therefore, when it was said in the Rankin Case that no action would lie for mere threats or abusive
words spoken, the court was careful to qualify the statement by confining it to the circumstances
stated; for, as we have seen, abusive language addressed to a passenger by a carrier’s servants is

N
actionable. And it is not absolutely true that no action will lie for threats. Blackstone says that injury
O
may be committed “by threats and menaces of bodily hurt, through fear of which a man’s business
is interrupted. A menace alone, without a consequent inconvenience makes not the injury, but to
TI
complete the wrong, there must be both of them together. The remedy for this is in pecuniary
U

damages, . . . this being inchoate, though not an absolute violence.” 3 Black. Com. 120. But the
IB

threat which causes the fear must be such as the law will recognize as adequate to produce the
result. There must be just p. 710and reasonable ground for the fear; hence a vain or idle threat is
TR

not sufficient. It must be of such nature and made under such circumstances as to affect the mind
of a person of ordinary reason and firmness, so as to influence his conduct; or it must appear that
IS

the person against whom it is made was peculiarly susceptible to fear, and that the person making
the threat knew and took advantage of the fact that he could not stand as much as an ordinary
ED

person.
R

If it should be conceded that the language of defendant contained a threat, it was not of such
nature or made under such circumstances as to put a person of ordinary reason and firmness in
fear of bodily hurt. And it is not alleged that plaintiff was not a person of ordinary reason and
firmness and that defendant knew it; and, in the absence of such allegation, it will not be presumed.
A person of ordinary reason and firmness should have known that the profane and vulgar language
alleged to have been used by defendant was the result of a momentary fit of passion, caused by
his failure to get the connection he asked for, and that he had no intention of doing or attempting to
do plaintiff any bodily hurt. But the words used did not amount to a threat. Defendant said: “If I were
there, I would break your . . . neck.” But he was not there, and plaintiff knew it; and there is nothing
in what he said expressive of an intention to go there and injure plaintiff. Webster defines a “threat”
as “the expression of an intention to inflict evil or injury on another.” The law dictionaries give
practically the same definition. A threat therefore looks to the future. As Judge Cooley says, in the
passage above quoted, “a threat only promises a future injury.” Here there was no expression of an
intention to injur[e] in the future, and therefore no threat.

The language attributed to defendant — especially when used by a man to a woman — merits
severest condemnation and subjects the user to the scorn and contempt of his fellow men. But it is
not civilly actionable . . . .

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VETTER v. MORGAN

913 P.2d 1200 (Kan. App. 1995)

Briscoe, C.J. Laura Vetter appeals the summary judgment dismissal of her . . . assault . . . and
negligence claims against Chad Morgan for injuries sustained in an automobile accident. We . . .
reverse and remand for further proceedings on . . . [these] claims . . . .

Vetter was injured when her van ran off the road after an encounter with a car owned by Morgan’s
father and driven by Dana Gaither. Morgan and Jerrod Faulkner were passengers in the car. Vetter
was alone at 1:30 or 1:45 a.m. when she stopped her van in the right-hand westbound lane of an
intersection at a stoplight. Morgan and Gaither drove up beside Vetter. Morgan began screaming
vile and threatening obscenities at Vetter, shaking his fist, and making obscene gestures in a
violent manner. According to Vetter, Gaither revved the engine of the car and moved the car back
and forth while Morgan was threatening Vetter. Vetter testified that Morgan threatened to remove
her from her van and spat on her van door when the traffic light turned green. Vetter stated she was
very frightened and thought Morgan was under the influence of drugs or alcohol. She was able to
write down the license tag number of the car. Morgan stated he did not intend to scare, upset, or
harm Vetter, but “didn’t really care” how she felt. He was trying to amuse his friends, who were
laughing at his antics.

p. 711When the traffic light changed to green, both vehicles drove forward. According to Vetter,
after they had driven approximately 10 feet, the car driven by Gaither veered suddenly into her
lane, and she reacted by steering her van sharply to the right. Vetter’s van struck the curb, causing
her head to hit the steering wheel and snap back against the seat, after which she fell to the floor of
the van. Morgan and Gaither denied that the car veered into Vetter’s lane, stating they drove
straight away from the intersection and did not see Vetter’s collision with the curb.

Vetter filed this action against Morgan and Gaither, alleging their negligent or intentional actions
had caused her injuries. The trial court granted summary judgment in favor of Morgan, ruling Vetter
could not raise a negligence claim against Morgan for unintended results of his intentional acts.
The court concluded that Morgan could not be liable for Gaither’s actions because Morgan did not
participate in driving the car. The court also concluded Morgan’s actions did not constitute assault
. . . and dismissed all claims against Morgan. Gaither settled with Vetter, and the trial court
approved the settlement . . . .

...

II. Assault

Vetter argues the trial court erred in dismissing her assault claim against Morgan. Assault is defined
as “an intentional threat or attempt, coupled with apparent ability, to do bodily harm to another,
resulting in immediate apprehension of bodily harm. No bodily contact is necessary.” Taiwo [v. Vu],
249 Kan. at 589, 596, 822 P.2d 1024 (quoting PIK Civ. 2d 14.01).

The trial court concluded there was no evidence that Morgan threatened or attempted to harm
Vetter, that he had no apparent ability to harm her because her van was locked and the windows
were rolled up, and there was no claim of immediate apprehension of bodily harm. Vetter contends

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all of these conclusions involved questions of fact that should have been resolved by a jury.

There was evidence of a threat. Vetter testified in her deposition that Morgan verbally threatened to
take her from her van. Ordinarily, words alone cannot be an assault. However, words can constitute
assault if “together with other acts or circumstances they put the other in reasonable apprehension
of imminent harmful or offensive contact with his person.” Restatement (Second) of Torts §31
(1964).

The record is sufficient to support an inference that Morgan’s threat and the acts and
circumstances surrounding it could reasonably put someone in Vetter’s position in apprehension of
imminent or immediate bodily harm. Morgan’s behavior was so extreme that Vetter could
reasonably have believed he would immediately try to carry out his threat. It is not necessary that
the victim be placed in apprehension of instantaneous harm. It is sufficient if it appears there will be
no significant delay. See Restatement (Second) of Torts §29(1), comment b (1964).

The record also supports an inference that Morgan had the apparent ability to harm Vetter.
Although Vetter’s van was locked and the windows rolled up, the windows could be broken. The
two vehicles were only six feet apart, and Morgan was accompanied by two other males. It was late
at night, so witnesses and potential rescuers were unlikely. Although Vetter may have had the
ability to flee by turning right, backing up, or running the red light, her ability to prevent the
threatened harm by flight or self-defense p. 712does not preclude an assault. It is enough that
Vetter believed that Morgan was capable of immediately inflicting the contact unless prevented by
self-defense, flight, or intervention by others.

Big Think

Stare Decisis

Suppose that Brooker and Vetter were issued by the same state high court. Are they reconcilable?
Or would Vetter amount to an overruling of Brooker? In what respect(s)?

The trial court erred in concluding there was no evidence that Vetter was placed in apprehension of
bodily harm. Whether Morgan’s actions constituted an assault was a question of fact for the jury.

[In the remainder of its opinion, the court concluded that a jury could also hold Morgan liable for the
tort of negligence if it were to deem his actions unreasonable and if it were to find that his actions
played a role in inducing her to veer off the road. The court further held that a jury could deem
Morgan responsible for Gaither’s alleged swerving of the car toward Vetter on the ground that the
two men were acting “in concert” with one another. — Eds.]

NOTES AND QUESTIONS

1. Apprehension Versus Fear. A plaintiff can make out a prima facie case of assault without having
to establish that she was fearful that she was about to suffer a harmful or offensive contact. It is
enough that she was aware that such contact might occur. Thus, a plaintiff who testifies to her
awareness that the defendant had tried unsuccessfully to dump garbage over her head, or to
caress her in an inappropriate but nonviolent manner, need not establish that she was afraid for her
physical well-being to make out a prima facie case of assault. Still, these sorts of plaintiffs may

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sometimes find that their lack of fear will affect the amount of compensatory damages they can
expect to recover.

2. “Mere” Words: Conditional or Indeterminate Threats. As indicated in Brooker, for a threat to

constitute an assault, it must be conveyed in a way that creates a reasonable belief in the hearer
that the threatened contact is imminent. Thus, as a matter of formal doctrine, it does not constitute
assault for D credibly to say to P: “One of these days, you’re gonna get it” or even “If you’re not out
of town by sunrise, I’m going to find you and beat you to a pulp.”

Some courts have generalized from this sort of example to the proposition, mentioned in Brooker
and Vetter, that “words alone” can never constitute an assault. This proposition must be handled
with a certain amount of care, given that real-world cases of assault rarely if ever consist of words
alone. Instead, they involve words uttered in a context that is created by, among other things, the
speaker’s tone of voice, accompanying gestures, the physical circumstances in which the
statement is uttered, the relationship or lack thereof between defendant and plaintiff, and
differentials between the assailant and the victim such as physical size or gender.

p. 713Suppose two adult male friends, D and P, are sitting at a table in the food court of a shopping
mall. In the midst of a tense conversation, D stands up, pushes away his chair, and says to P in an
angry tone: “You are driving me nuts! I cannot take this anymore! I am going to have to beat some
sense into you right here and right now!” P is frightened by D’s statement. However, after a few
tense seconds, D storms off. P remains upset over the incident and decides to sue D for assault. Is
this a case of “mere words”? Are there good reasons for the law to decline to recognize D’s
conduct as an assault of P?

3. Present Ability and Reasonableness of Apprehension. Not all apprehensions caused by the
intentional act of another count as assaults. Rather, as with respect to offensive-contact batteries,
social norms play an important role in determining the circumstances under which an individual is
justified in apprehending imminent harmful contact. Thus, some of the cases thought to exemplify
the “words alone” maxim are perhaps better explained in terms of a judicial insistence that the
victim’s apprehension have some objective basis. For example, given the apparent lack of physical
proximity between the caller and the operator in Brooker, one might conclude that, as a matter of
law, the operator was not reasonable in apprehending imminent harmful contact. What aspects of
the situation in Vetter provided the plaintiff with objective grounds for apprehending imminent
harmful contact?

In the well-known, if dated, case of Western Union Tel. Co. v. Hill, 150 So. 709 (Ala. Ct. App.), cert.
denied, 150 So. 711 (Ala. 1933), Mrs. Hill entered a telegraph office looking for one Sapp, a
Western Union employee, to request of Sapp that he repair a broken clock in her husband’s store.
Sapp, who had been drinking, reached across a countertop that separated them and stated to Mrs.
Hill that, if she would “love and pet him,” he would “fix her clock.” The appellate court held that the
jury could find that, given his height, and the height and width of the counter, Sapp was in a position
to reach past the counter’s far edge and touch Mrs. Hill. Thus, Sapp’s propositioning of Mrs. Hill,
when combined with evidence of his “present ability” to act on it, permitted the jury to conclude,
first, that he acted with intent to create an apprehension of imminent offensive contact, and,
second, that the plaintiff was reasonable to apprehend such contact.

While acknowledging that they express a minority position, the draft assault provisions of the

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Restatement (Third) of Torts employs a subjective standard for apprehension, reasoning that doing
so “aligns best with the interests protected by assault” and will not generate excessive liability given
other limitations built into the tort. Restatement (Third) of Torts: Intentional Torts to Persons §105,
cmt. d (Tent. Draft No. 1, April 8, 2015). Suppose D, standing in a field, erroneously believes that
he can throw a large rock far enough that it will reach P, who is standing 50 yards away. D throws
the rock toward P, intending to scare P. Given the rock’s trajectory, it would be immediately obvious
to an objective observer that the rock had no chance of coming near P. Nonetheless, P, who is
unusually timid, fears that the rock is about to strike him. Should D be liable to P for assault?

4. Aiding and Abetting. Could Vetter successfully sue Gaither, the driver of the car in which Morgan
was sitting, for playing a role in the assault? That would depend on whether a jury could find that
Gaither “aided or abetted” Morgan’s assault, that is, encouraged, incited, or helped to carry it out.
Aiding and abetting closely resembles the p. 714idea of “concert of action” mentioned briefly in the
notes following Summers v. Tice in Chapter 4. Indeed, as indicated at the end of the excerpted
Vetter opinion, the court held that Morgan could potentially be held liable for Gaither’s careless
driving, which functioned as a cause of Vetter’s crash, on the ground that Morgan and Gaither were
co-venturers. Presumably a similar rationale would apply to establish that Gaither aided and
abetted Morgan’s assault. See Halberstam v. Welch, 705 F.2d 472 (D.C. Cir. 1983) (discussing the
scope of aiding and abetting liability in tort). The Third Torts Restatement recognizes the aiding and
abetting of another’s intentional tort as an independent tort. See Restatement (Third) of Torts:
Intentional Torts to Persons §10 (Tent. Draft No. 3, April 6, 2018) (stating that a defendant who
“instigates, encourages, or assists another person’s commission of an intentional tort” may be held
liable “for that tort” even if the defendant’s actions do not independently satisfy the prima facie case
for that tort).

For a decision that provides an interesting application of assault law, while also invoking a
seemingly narrow conception of aiding and abetting, see Phelps v. Bross, 73 S.W.3d 651 (Mo. App.
2002). Phelps worked as a “Budweiser girl” who accompanied male golfers during organized golf
outings. According to the allegations in Phelps’s complaint, at the conclusion of one such outing,
her supervisor coerced her into accepting a ride back to her hotel from two golfers, Bross and
Church. The two men then drove Phelps to Bross’s house, where Church provided Phelps with a
beer containing a drug that rendered her unconscious. While Phelps was unconscious, Church
sexually assaulted her. When Phelps awoke, she found herself naked in a bed with Bross sitting
next to her, fully clothed. Phelps ran from the house and contacted the police. She later sued
Bross, among others, for assault and for aiding and abetting Church’s battery. The appellate court
concluded that, notwithstanding his active participation in the transportation of Phelps to his own
house, Bross could not be held to have aided and abetted Church’s battery because there was no
evidence that he incited, encouraged, or participated in the attack itself. However, the court
reversed the trial court’s entry of summary judgment on Phelps’s assault claim against Bross,
concluding that a jury could reasonably find that Bross assaulted Phelps by getting into bed next to
her and thereby causing her to fear imminent harmful or offensive contact when she awoke.

In Rice v. Paladin Enterprises, Inc., 128 F.3d 233 (4th Cir. 1997), cert. denied, 523 U.S. 1074
(1998), a federal court of appeals was faced with a lawsuit against the publisher of a manual,
entitled Hit Man, that instructs would-be assassins on how to commit and get away with murders.
The plaintiffs, survivors of a decedent who was killed by a person who used the book’s methods,
claimed that the publisher had aided and abetted the killing. The court’s opinion was devoted to

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rejecting the defendant’s assertion that the First Amendment creates a blanket immunity from
liability for book publishers. The case also poses an interesting question of substantive tort law:
Does the publication of an instruction manual not directed to or at any particular person amount to
the aiding and abetting of a battery committed in accordance with the manual’s instructions?

The concept of civil liability for aiding and abetting received renewed attention in connection with
litigation brought under a federal statute known as the Alien Tort Statute (ATS). The ATS is a
jurisdictional rather than a substantive statute. It does not p. 715recognize a new cause of action
but instead grants federal courts the authority to adjudicate suits by non-U.S. citizens (“aliens”)
seeking redress for certain torts defined independently of the ATS itself.

In one example of aiding and abetting issues arising in ATS litigation, representatives of Myanmar
citizens who allegedly were killed, raped, tortured, dispossessed, and/or conscripted by Myanmar
military personnel brought suit in federal court against the Unocal Corporation. The suit alleged that
Unocal, a participant in a joint venture responsible for building a gas pipeline in Myanmar,
supervised and paid Myanmar soldiers to provide security for the project, and in the process
knowingly aided or encouraged the soldiers’ human rights abuses. Although a three-judge panel
initially ruled that the plaintiffs’ complaint stated cognizable claims against Unocal for having aided
and abetted human rights abuses in violation of international law, that decision was vacated upon
the subsequent granting of Unocal’s motion to have the full (en banc) court rule on Unocal’s motion
to dismiss. Doe v. Unocal, 395 F.3d 978 (9th Cir. 2003). The case was then transferred to state
court, in which the plaintiffs pursued various state-law claims, including for battery and other
intentional torts, under theories of direct and vicarious liability. Unocal’s efforts to have those claims
dismissed were unsuccessful, but the case settled in 2004 before trial began and before the United
States Court of Appeals for the Ninth Circuit, sitting en banc, could hear the appeal of the federal
suit. 403 F.3d 708 (9th Cir. 2005).

The United States Supreme Court has since cut back substantially on the ATS’s reach, ruling that it
does not permit claims in federal courts based on misconduct that occurred exclusively or primarily
outside of U.S. territory. Kiobel v. Royal Dutch Petroleum Co., 133 S. Ct. 1659 (2013) (affirming
dismissal of claims by Nigerian plaintiffs that defendant oil companies aided and abetted the
Nigerian government in committing human rights violations).

C. Intent Revisited: Transferred Intent

We have seen examples of battery and assault cases in which it is quite clear that the assailant
acted with the requisite purpose or knowledge, and that his act led directly and predictably to the
intended outcome. Such was the case in Cecarelli, for example. We have also seen cases, such as
Vosburg, in which there was a mismatch between the harmfulness of the touching intended by the
defendant and the harmfulness of the touching that actually occurred. In this section we consider
how tort law handles certain other cases involving a mismatch between intent and consequence.

IN RE WHITE

18 B.R. 246 (Bankr. E.D. Va. 1982)

Shelley, Bankr. J . . . .

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Statement of the Facts

On September 10, 1977 Walter Calvin White, Jr. (White) shot Ralph Edward Davis (Davis) in the
stomach with a handgun. White was arrested for the shooting and on p. 716November 29, 1978 the
Circuit Court of the City of Richmond found him guilty of maiming Davis and sentenced him to
serve five years in the state penitentiary. On February 26, 1980 Davis obtained a default judgment
against White in the amount of $50,000.00 in the Circuit Court for the City of Richmond on the
ground that White willfully and maliciously wounded Davis. White subsequently filed his petition in
bankruptcy and Davis now asks this Court to declare White’s debt on account of that judgment
nondischargeable in bankruptcy.

On the day of the shooting Davis and his brother, Marvin W. Davis, were washing cars in front of
their mother’s house on Fairmont Avenue in Richmond, Virginia. At the same time White, a
neighbor who lives less than one block away on the same street, was having a conversation with
William Tipton (Tipton). In that conversation White and Tipton continued an argument which had
begun approximately one week earlier. White had obtained a gun in anticipation of seeing Tipton.
White was carrying the pistol in a container on his motorcycle and pulled it out of the container
during the course of that argument.

When White pulled the gun Tipton mounted his motorcycle and sped away. White shot at Tipton as
Tipton passed within twenty-five feet of Davis. He missed Tipton and the bullet hit Davis in the
stomach. White fled the scene.

White testified at the trial that he obtained the gun with the intent of scaring Tipton. He said that he
drew the gun after Tipton insulted his mother but that he did not intentionally fire the gun. He
claimed the gun went off when he tripped over a rock in the street.

Davis and White did not know each other before the shooting incident. White said he pulled the gun
intending to scare Tipton and that it accidently fired. This Court believes that White’s testimony that
the gun accidently fired when he tripped over a rock is unworthy of belief. White testified that he
obtained the gun earlier that week with another meeting with Tipton in mind. Although Davis was
located almost a full block from White, the bullet hit him as Tipton passed within twenty-five feet of
him. White clearly intended to shoot Tipton; however, he missed and the bullet hit Davis instead.

Conclusions of Law

A debt incurred from an action based upon a willful and malicious injury by the debtor to another
person may be nondischargeable in bankruptcy. 11 U.S.C. §523(a)(6). The word “willful” means
deliberate or intentional.*15

It is clear . . . that “reckless disregard” is no longer sufficient to make a debt nondischargeable . . . .

[However,] the [Bankruptcy] Act does not necessarily restrict the penalty of nondischargeability . . .
[to] cases in which the debtor injured the person he p. 717intended to injure. “ . . . The word ‘willful’
means ‘deliberate or intentional,’ a deliberate and intentional act which necessarily leads to injury.
Therefore, a wrongful act done intentionally, which necessarily produces harm and is without just
cause or excuse, may constitute a willful and malicious injury.” Collier on Bankruptcy, para.
523.16[1] (15th ed. 1981) (footnotes omitted).

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White committed the wrongful act when he shot at Tipton. The act was intentional and it produced
an injury although not to the person White intended to injure. White’s actions cannot be excused
solely because he missed his intended victim and instead hit someone else. The injury is not
required to be directed against the victim, but includes any entity other than the intended victim.

Under the doctrine of transferred intent one who intends a battery is liable for that battery when he
unexpectedly hits a stranger instead of the intended victim. W. Prosser, The Law of Torts, 33 (4th
ed. 1971). If one intentionally commits an assault or battery at another and by mistake strikes a
third person, he is guilty of an assault and battery of the third person if “defendant’s intention, in
such a case, is to strike an unlawful blow, to injure some person by his act, and it is not essential
that the injury be to the one intended.” Morrow v. Flores, 225 S.W.2d 621, 624, Tex. Civ. App.
(1949), rehearing denied 1950.

Virginia courts have adopted the doctrine of transferred intent reasoning that “ . . . every person is
liable for the direct, natural and probable consequence of his acts, and that every one doing an
unlawful act is responsible for all of the consequential results of that act.” Bannister v. Mitchell, 127
Va. 578, 104 S.E. 800, 801 (1920). There need be no actual intent to injure the particular person
who is injured. Id. . . .

The evidence here clearly shows that the shooting was a wrongful act intentionally done and that
Davis’s injuries resulted from that act. White deliberately, intentionally and maliciously fired the gun
and injured Davis and the debt resulting from that act is nondischargeable in bankruptcy . . . .

u
ed
An appropriate order will issue.

NOTES AND QUESTIONS n.

on
uc

1. Transferred Intent (I): Same Victim, Different Intentional Tort. The doctrine of transferred
intent invoked by the White court is in reality a collection of doctrines, some of which may be more
6@

defensible than others. It will therefore be worthwhile to attempt to disaggregate the various rules
that fall under that label.
00

At times transferred intent is invoked to address a situation in which the defendant intends a victim
18

to suffer one kind of prohibited consequence (e.g., a harmful touching), but ends up causing that
s

victim to suffer a different kind of consequence that is also prohibited (e.g., apprehension of an
to

imminent harmful touching). Consider, for example, the following passage from Nelson v. Carroll, a
Maryland Supreme Court decision.

In attempting to collect a debt owed to him by one Charles “Pee Wee” Nelson, Albert “Junior”
Carroll was about to strike Nelson in the head with a gun when the gun accidentally fired, causing
Nelson to be shot. In response to Nelson’s battery claim, p. 718Carroll argued that he should not
be found liable because his intent was merely to “scare” Nelson, not shoot him. The Court rejected
this argument.

The rule is widely recognized that when one commits an assault, and in the course of committing
the assault that person comes into contact with the person assaulted, the intent element of battery
may be supplied by the intent element of the assault. Professors Prosser and Keeton explain:

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“Although a contact . . . is . . . essential [to battery], the intent element of the cause of action is
satisfied not only if the defendant intends a harmful contact . . . upon the plaintiff . . . but also if
the defendant intends only to cause apprehension that such a contact is imminent (an assault-type
consequence).” (emphasis added) (footnotes omitted).

Prosser & Keeton, The Law of Torts §9, at 39 (5th ed.1984). See also Restatement (Second) of
Torts §13 (1965) (“An actor is subject to liability to another for battery if (a) he acts intending to
cause a harmful or offensive contact with the person of the other or a third person, or an imminent
apprehension of such a contact. . . . ” (emphasis added)).

. . . Therefore, one who intends to frighten another by assaulting him or her, and touches this
person in a harmful or offensive manner and claims the touching was inadvertent or accidental, is
liable for battery, notwithstanding the contention that the actual touching was never intended . . . .

Nelson v. Carroll, 735 A.2d 1096, 1102-03 (Md. 1999).

In this iteration, the doctrine of transferred intent presumably permits mixing and matching among
certain other intentional torts. Thus, if D slams a door intending to lock P in a room, but P’s fingers
are crushed in the closing door, D’s intent to confine P will likely suffice to establish the intent
element of P’s claim for battery even though D never intended to touch P. What explains the
willingness of tort law to mix and match intents and consequences, and with them, different
wrongs?

2. Transferred Intent (II): Across Victims. As White indicates, courts sometimes also use
transferred intent to convey a different idea, namely that victims of certain acts that were intended
to injure someone else may sue even though they were not among the persons whom the
defendant intended to injure. Talmage v. Smith, 59 N.W. 656 (Mich. 1894), is often held out as a
leading instance of a court permitting intent to transfer from an intended to an unintended victim. In
that case, Smith saw several boys playing on the roof of a shed on his property. He sought to
chase them away by hurling a large stick at one of them. The stick instead hit another boy who was
on the shed (Talmage) and blinded him in one eye. Smith argued as an affirmative defense that he
was entitled to throw the stick at the boys as a reasonable means of defending his property. See
Section III, infra. The trial judge instructed the jury that if it found that Smith’s action involved
excessive rather than reasonable force, it should hold Smith liable regardless of whether he
intended to hit Talmage or the other boy. The Michigan Supreme Court upheld this instruction.

Is Talmage properly understood as an instance in which the defendant acts with the intent to cause
a harmful contact with A but ends up causing harmful contact with p. 719unintended victim B? Or is
it an example of an act undertaken with intent to cause harm to any one of several possible
victims? (Did Smith really care which boy he hit?) If the latter, does it support the result reached by
the bankruptcy judge in White? Of course, White’s wrongful conduct obviously caused harm to
Davis. But did White subject Davis to the sort of purposeful touching characteristic of batteries? Is
there a better way to describe the wrong perpetrated by White against Davis? If so, would that
description also bar White from discharging his liability to Davis in bankruptcy under the terms of
the Bankruptcy Code?

Assume that the bankruptcy judge correctly deemed White’s conduct to constitute a battery against
Davis. Would the same analysis apply if, upon hearing the gunshot, Davis instinctively (and

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reasonably) dove to the ground, breaking his arm? What if Tipton, in his haste to avoid being shot,
drove his motorcycle into pedestrian P, who was crossing the street 50 yards from where White
fired his weapon: Could P establish a claim of battery against White? If not, why not?

3. Transferred Intent (III): Across Torts and Victims. In principle, it is open to courts to combine
the foregoing forms of transferred intent to create a third variant, in which the tortfeasor is held
liable to actual victim (AV) for tort T1, even though he acted for the purpose of injuring potential
victim (PV) in a manner that, had he been successful, would have constituted tort T2. Indeed, if the
bankruptcy judge credited White’s testimony that he shot at Tipton only to scare him, then White v.
Davis is such a case: White intended to engage in conduct that amounted to an assault of Tipton
but ended up being held liable for committing battery against Davis.

4. Transferred Intent (IV): From Things to Persons. Commentators often place property torts
such as trespass to land and conversion into the category of intentional torts. As a result, they
sometimes go so far as to suggest that intent should transfer from these “property torts” to battery
and assault. For example, Prosser once suggested that if D were knowingly to shoot at a domestic
dog, intending to kill it, but ended up shooting person P instead, D’s intent to kill the dog — which, if
it had resulted in harm to or the death of the dog, would have amounted to the tort of trespass to
personal property (“chattel”) or conversion — should suffice to provide the necessary intent for P to
make out a case of battery, even if D had no reason to know that P was anywhere nearby.

Prosser seems to have based this conclusion primarily on Corn v. Sheppard, 229 N.W. 869 (Minn.
1930). There, the defendant sought to avoid liability by arguing that at the time he shot the plaintiff,
he was unaware of plaintiff’s presence and was instead shooting at a domesticated dog. Noting
that the shooting of a domestic animal was unlawful under state statute, and that the discharge of a
firearm is an inherently dangerous activity, the court concluded that, “[w]here a person intentionally
discharges a firearm for a wrongful purpose and another is hit, he is liable for the injuries inflicted,
although he did not intend to hit the other nor even know that any person was within range.” Id. at
871. Is Corn an instance of the sort of broad transferred intent that Prosser describes, or does it
impose negligence (or strict) liability on the activity of discharging a firearm?

Compare Corn to Lynn v. Burnette, 531 S.E. 2d 275 (N.C. Ct. App. 2000). After a confrontation in a
parking lot, defendant Burnette fired a gun out of the window of p. 720her car at Lynn, who was in
his car, striking Lynn in the neck. Lynn sued Burnette after the statute of limitations for battery had
run, but prior to the expiration of the limitations period for negligence actions. Burnette admitted in
her deposition that she purposely fired in the direction of Lynn’s car, but claimed that she was
aiming for one of its rear tires and simply missed her target. She thus moved for summary
judgment on the ground that the action was time-barred because, in effect, it sought redress for a
transferred-intent battery — a harmful touching of a person resulting from an intended trespass to
chattel (the intentional shooting at the car).

The court first ruled that the question of what consequences Burnette had intended by firing the
gun was settled by her admission, and hence there was no need for a jury to construe what she
had in mind when she pulled the trigger. It then concluded, based on Burnette’s admission, that
Lynn’s claim sounded in negligence rather than battery and thus could proceed, apparently
rejecting the idea of intent transferring from the tort of trespass to personal property to the tort of
battery. Although the court’s unwillingness to link trespass and battery in this way was probably
sound, its handling of the case in other respects seems problematic, particularly its treatment of the

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defendant’s admission as settling the question of her intent. Shouldn’t the factfinder be asked to
consider whether Burnette’s description of her intent was self-serving? Could not a jury have
reasonably concluded that, in shooting at the tire, Burnette acted for the purpose of scaring Lynn,
or in the knowledge that she would scare him? If a jury could make that finding, would that change
the outcome of the analysis as to whether Burnette committed battery or negligence?

On the problems of transferring intent from property torts to intentional torts, consider the following
hypothetical. D is invited to a party held on the ground floor of a department store after regular
business hours. As he moves among the glamorous crowd, D aggressively fondles what he
reasonably and sincerely believes to be a mannequin. Much to his horror, he discovers that the
“mannequin” is in fact M, a model who was hired by the party’s organizers to imitate a mannequin.
Is it plausible to assert that D has committed battery against M?

5. Relational Wrongs and Transferred Intent. In the Palsgraf decision discussed in Chapter 5,
Chief Judge Cardozo held that a negligence plaintiff cannot prevail merely by demonstrating
careless conduct that happens to injure her. In addition, she must prove that the conduct was
careless as to her. Does the application of transferred intent in a case such as White refute the idea
that tort law — or at least intentional tort law — contains a similar requirement? In their Palsgraf
opinions, both Cardozo and dissenting Judge Andrews discuss transferred intent doctrine in
articulating their respective positions on negligence law. If you have read those opinions, consider
in light of what you now know whether either’s treatment of the doctrine is convincing.

6. Intentional Torts and Proximate Cause. Much of Chapter 5 is devoted to explaining the
negligence concept of “proximate cause.” In a nutshell, it requires a negligence plaintiff to show not
only that a defendant’s carelessness actually caused her to suffer an injury but also that it caused
the injury in the “right way” — i.e., a non-haphazard or non-fortuitous manner. Courts rarely if ever
invoke the concept of proximate cause by name when analyzing claims of battery, assault, and the
like. Still, p. 721there probably are decisions that decline to recognize such claims on grounds that
resemble no-proximate-cause grounds.

Consider Herr v. Booten, 580 A.2d 1115 (Pa. Super. Ct. 1990). Eric Herr was about to reach the
age of 21. He and the defendants — his college roommates and an acquaintance — purchased
and consumed large quantities of beer during the day. Later the defendants presented Eric with a
bottle of bourbon and induced him to “chug” it. During the ensuing night, Eric died of acute alcohol
poisoning. His parents sued the defendants for inducing Eric to drink lethal amounts of alcohol,
alleging the torts of negligence and battery. As to the battery claim, the appellate court affirmed the
trial court’s entry of summary judgment for the defendants, stating that it was “unwilling to view the
supplying of an alcoholic beverage to a person as an act intending to cause ‘offensive or harmful
bodily contact.’” A majority of the court then reversed the trial court’s entry of judgment for the
defendants on the negligence claim, permitting it to go to the jury primarily on the issues of fault
and comparative fault.

What exactly is problematic about the battery claim in Herr? The defendants, in providing alcohol to
Eric, did not intend to kill him. But it is also quite likely that they did intend to cause him to become
violently ill. If so, wouldn’t the intent element of the tort be satisfied? (Suppose D were to force or
trick P into drinking poison that induced nausea in P. D’s desire to cause P to become sick would
presumably suffice to establish the intent element.) If there is not a problem with the intent element,
does the difficulty with the claim on behalf of Eric reside instead in the particular way in which the

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defendants’ intentional acts brought about Eric’s death — i.e., that their intentional acts did not
produce his death “in the right way” given the role his own actions played? Perhaps this is what the
court was getting at when it reasoned that the defendants’ conduct did not amount to an “act that
impinges upon th[e] individual’s sense of physical dignity or inviolability.” If so, then Herr arguably is
an instance in which a court applies an intentional-tort analogue to the negligence doctrine of
“superseding cause,” which is the name for a special branch of proximate cause doctrine. See
Chapter 5.

III. STANDARD DEFENSES TO BATTERY AND ASSAULT

It is sometimes open to parties sued for assault and battery — as well as other torts — to defeat
liability notwithstanding the claimant’s establishment of a prima facie case. This is because the
defendant can establish his entitlement to what the law recognizes as an “affirmative defense” to
such a claim. This section focuses on certain important affirmative defenses that are available to
those sued for assault and battery. (These same defenses are available to defendants alleged to
have committed other intentional torts as well, such as false imprisonment.)

Defenses to assault and battery typically assert that the alleged tortfeasor was privileged to act as
she did, even though her conduct was prima facie tortious. Privileges recognized by tort law in turn
tend to consist of justifications, as opposed to excuses. To claim a justification for one’s conduct is
to claim that one was entitled to engage in the p. 722conduct, notwithstanding its apparent
wrongfulness. So, for example, a person sued for battery who asserts the privilege of self-defense
is claiming that she was within her rights to cause intentionally a harmful touching of another
because she actually and reasonably believed that doing so was necessary to protect herself from
an imminent harmful or inappropriate touching. By contrast, when an actor asserts an excuse, she
alleges that something about her condition or circumstances — for example, her diminished mental
capacity — entitles her to an exemption from the rules of right conduct. As we have seen already in
Wagner, tort law is generally reluctant to recognize excuses.

As is the case for claims of negligence (see Chapter 7), the burden of pleading and proving
affirmative defenses usually rests on the alleged tortfeasor — if he fails to raise them by the
appropriate procedures, or to prove them, they will be lost.*16 However, some states’ laws treat
what are treated here as defenses as elements of the prima facie case. This is particularly so with
the defense of consent, to which we turn first. Some courts require plaintiffs to prove absence of
consent rather than leaving it to the defendant to prove that the victim consented. Given that torts
such as battery concern, at their core, the subjection of another to unwanted touchings, etc., it is
perhaps not surprising that the issue of consent is sometimes singled out for this special treatment.

Before considering consent and other defenses available to tortfeasors who have committed
assault or battery, it will be helpful to highlight the unavailability of another potential defense —
comparative fault. As explained briefly in Chapter 1, and more extensively in Chapter 7, it is open to
a defendant being sued for the tort of negligence to argue in defense that the plaintiff’s own fault
contributed to her being injured. Thus, for example, car driver D, who carelessly runs over and
injures pedestrian P, may attempt to establish that P was herself careless by stepping off the curb
without checking for traffic. If D can establish that P’s carelessness, along with D’s, played a role in
causing P’s injuries, then — depending on the rules of the particular jurisdiction and the factfinder’s

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assignment of percentage fault to D and P — the effect of this showing will be to reduce P’s
recovery or to bar her suit altogether.

For torts such as assault and battery, the longstanding black letter rule is that comparative fault
doctrine has no place. For example, suppose B purposely induces A to ingest a drink containing
poison. Under the majority rule, even if B can prove that, had A exercised reasonable care, he
would have detected the poison (e.g., by taking notice of the poison’s powerful bitter odor), B
cannot invoke comparative fault to reduce A’s damages or bar his claim. However, some courts
and legislatures have recognized, and some commentators have urged, that comparative fault be
recognized as a distinct defense to intentional tort claims. See Dan B. Dobbs, The Law of Torts
§206, at 517-522 (2000) (discussing the issue). Moreover, it may sometimes be the case that
evidence of a victim’s carelessness can be offered as relevant to the proof of a defense that
actually is recognized in intentional tort law. Thus, evidence that a victim acted with apparent
disregard for his physical well-being might, in some circumstances, support an inference that he
implicitly consented to being subject to defendant’s wrongful conduct.

p. 723

A. Consent

The doctrine of consent turns on the idea that a plaintiff cannot prevail on her tort claim because
she has assented, under appropriate conditions, to endure a bodily contact, or an apprehension of
contact, or a confinement, that would otherwise be tortious. As we will see, consent can be
communicated expressly, through a written or spoken statement, or it can be communicated
implicitly, through conduct.

KOFFMAN v. GARNETT

574 S.E.2d 258 (Va. 2003)

Lacy, J. In this case we consider whether the trial court properly dismissed the plaintiffs’ second
amended motion for judgment for failure to state causes of action for gross negligence, assault,
and battery.

Because this case was decided on demurrer, we take as true all material facts properly pleaded in
the motion for judgment and all inferences properly drawn from those facts.

In the fall of 2000, Andrew W. Koffman, a 13-year old middle school student at a public school in
Botetourt County, began participating on the school’s football team. It was Andy’s first season
playing organized football, and he was positioned as a third-string defensive player. James Garnett
was employed by the Botetourt County School Board as an assistant coach for the football team
and was responsible for the supervision, training, and instruction of the team’s defensive players.

The team lost its first game of the season. Garnett was upset by the defensive players’ inadequate
tackling in that game and became further displeased by what he perceived as inadequate tackling
during the first practice following the loss.

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Garnett ordered Andy to hold a football and “stand upright and motionless” so that Garnett could
explain the proper tackling technique to the defensive players. Then Garnett, without further
warning, thrust his arms around Andy’s body, lifted him “off his feet by two feet or more,” and
“slamm[ed]” him to the ground. Andy weighed 144 pounds, while Garnett weighed approximately
260 pounds. The force of the tackle broke the humerus bone in Andy’s left arm. During prior
practices, no coach had used physical force to instruct players on rules or techniques of playing
football.

In his second amended motion for judgment, Andy, by his father and next friend, Richard Koffman,
and Andy’s parents, Richard and Rebecca Koffman, individually, (collectively “the Koffmans”)
alleged that Andy was injured as a result of Garnett’s simple and gross negligence and intentional
acts of assault and battery . . . . The trial court dismissed the action, finding that . . . the facts
alleged were insufficient to state causes of action for gross negligence, assault, or battery because
the instruction and playing of football are “inherently dangerous and always potentially violent.”

In this appeal, the Koffmans . . . assert that they pled sufficient facts in their second amended
motion for judgment to sustain their claims of gross negligence,*17 assault, and battery.

p. 724

I.

. . . [The Court first concluded that the trial court had erred in ruling as a matter of law that Garnett
could not have acted with “gross negligence” toward Koffman. Under Virginia law, public employees
cannot be held liable for simple (ordinary) negligence, but can be held liable for “gross” negligence.]

The disparity in size between Garnett and Andy was obvious to Garnett. Because of his authority
as a coach, Garnett must have anticipated that Andy would comply with his instructions to stand in
a non-defensive, upright, and motionless position. Under these circumstances, Garnett proceeded
to aggressively tackle the much smaller, inexperienced student football player, by lifting him more
than two feet from the ground and slamming him into the turf. According to the Koffmans’
allegations, no coach had tackled any player previously so there was no reason for Andy to expect
to be tackled by Garnett, nor was Andy warned of the impending tackle or of the force Garnett
would use.

. . . The facts alleged in this case, however, go beyond the circumstances of simply being tackled
in the course of participating in organized football. Here Garnett’s knowledge of his greater size and
experience, his instruction implying that Andy was not to take any action to defend himself from the
force of a tackle, the force he used during the tackle, and Garnett’s previous practice of not
personally using force to demonstrate or teach football technique could lead a reasonable person
to conclude that, in this instance, Garnett’s actions were imprudent and were taken in utter
disregard for the safety of the player involved. Because reasonable persons could disagree on this
issue, a jury issue was presented, and the trial court erred in holding that, as a matter of law, the
second amended motion for judgment was inadequate to state a claim for gross negligence.

II.

The trial court held that the second amended motion for judgment was insufficient as a matter of

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law to establish causes of action for the torts of assault and battery. We begin by identifying the
elements of these two independent torts. See Charles E. Friend, Personal Injury Law in Virginia
§6.2.1 (2d ed. 1998). The tort of assault consists of an act intended to cause either harmful or
offensive contact with another person or apprehension of such contact, and that creates in that
other person’s mind a reasonable apprehension of an imminent battery. Restatement (Second) of
Torts §21 (1965); Friend §6.3.1 at 226; Fowler V. Harper, et al., The Law of Torts §3.5 at 3:18-:19
(3d ed. Cum. Supp. 2003).

The tort of battery is an unwanted touching which is neither consented to, excused, nor justified.
Although these two torts “go together like ham and eggs,” the difference between them is “that
between physical contact and the mere apprehension of it. One may exist without the other.” W.
Page Keeton, Prosser and Keeton on Torts §10 at 46; see also Friend §6.3.

The Koffmans’ second amended motion for judgment does not include an allegation that Andy had
any apprehension of an immediate battery. This allegation cannot be supplied by inference
because any inference of Andy’s apprehension is discredited p. 725by the affirmative allegations
that Andy had no warning of an imminent forceful tackle by Garnett. The Koffmans argue that a
reasonable inference of apprehension can be found “in the very short period of time that it took the
coach to lift Andy into the air and throw him violently to the ground.” At this point, however, the
battery alleged by the Koffmans was in progress. Accordingly, we find that the pleadings were
insufficient as a matter of law to establish [an assault].

The second amended motion for judgment is sufficient, however, to establish a . . . battery. The
Koffmans pled that Andy consented to physical contact with players “of like age and experience”
and that neither Andy nor his parents expected or consented to his “participation in aggressive
contact tackling by the adult coaches.” Further, the Koffmans pled that, in the past, coaches had
not tackled players as a method of instruction. Garnett asserts that, by consenting to play football,
Andy consented to be tackled, by either other football players or by the coaches.

Whether Andy consented to be tackled by Garnett in the manner alleged was a matter of fact.
Based on the allegations in the Koffmans’ second amended motion for judgment, reasonable
persons could disagree on whether Andy gave such consent. Thus, we find that the trial court erred
in holding that the Koffmans’ second amended motion for judgment was insufficient as a matter of
law to establish a claim for battery . . . .*18

Kinser, J. (concurring in part, dissenting in part). I agree with the majority opinion except with
regard to the issue of consent as it pertains to the intentional tort of battery. In my view, the second
amended motion for judgment filed by the plaintiffs, Andrew W. Koffman, by his father and next
friend, and Richard Koffman and Rebecca Koffman, individually, was insufficient as a matter of law
to state a claim for battery.

Absent fraud, consent is generally a defense to an alleged battery. In the context of this case,
“[t]aking part in a game manifests a willingness to submit to such bodily contacts or restrictions of
liberty as are permitted by its rules or usages.” Restatement (Second) of Torts §50, cmt. b (1965),
quoted in Thompson v. McNeill, 53 Ohio St. 3d 102, 559 N.E.2d 705, 708 (1990) . . . . However,
participating in a particular sport “does not manifest consent to contacts which are prohibited by
rules or usages of the game if such rules or usages are designed to protect the participants and not
merely to secure the better playing of the game as a test of skill.” Restatement (Second) of Torts

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§50, cmt. b (1965) quoted in Thompson . . . .

The thrust of the plaintiffs’ allegations is that they did not consent to “Andy’s participation in
aggressive contact tackling by the adult coaches” but that they consented only to Andy’s engaging
“in a contact sport with other children of like age and experience.” They further alleged that the
coaches had not previously tackled the players when instructing them about the rules and
techniques of football.

It is notable, in my opinion, that the plaintiffs admitted in their pleading that Andy’s coach was
“responsible . . . for the supervision, training and instruction of the p. 726defensive players.” It
cannot be disputed that one responsibility of a football coach is to minimize the possibility that
players will sustain “something more than slight injury” while playing the sport. Vendrell v. School
District No. 26C, Malheur County, 233 Or. 1, 376 P.2d 406, 413 (1962). A football coach cannot be
expected “to extract from the game the body clashes that cause bruises, jolts and hard falls.” Id.
Instead, a coach should ensure that players are able to “withstand the shocks, blows and other
rough treatment with which they would meet in actual play” by making certain that players are in
“sound physical condition,” are issued proper protective equipment, and are “taught and shown
how to handle [themselves] while in play.” Id. The instruction on how to handle themselves during a
game should include demonstrations of proper tackling techniques. Id. By voluntarily participating in
football, Andy and his parents necessarily consented to instruction by the coach on such
techniques. The alleged battery occurred during that instruction.

The plaintiffs alleged that they were not aware that Andy’s coach would use physical force to
instruct on the rules and techniques of football since neither he nor the other coaches had done so
in the past. Surely, the plaintiffs are not claiming that the scope of their consent changed from day
to day depending on the coaches’ instruction methods during prior practices. Moreover, they did not
allege that they were told that the coaches would not use physical demonstrations to instruct the
players.

Additionally, the plaintiffs did not allege that the tackle itself violated any rule or usage of the sport
of football. Nor did they plead that Andy could not have been tackled by a larger, physically
stronger, and more experienced player either during a game or practice. Tackling and instruction on
proper tackling techniques are aspects of the sport of football to which a player consents when
making a decision to participate in the sport.

In sum, I conclude that the plaintiffs did not sufficiently plead a claim for battery. We must
remember that acts that might give rise to a battery on a city street will not do so in the context of
the sport of football. We must also not blur the lines between gross negligence and battery because
the latter is an intentional tort. I agree fully that the plaintiffs alleged sufficient facts to proceed with
their claim for gross negligence . . . .

NOTES AND QUESTIONS

1. Express Consent. To the extent Koffman consented to harmful contact, he did so implicitly, by
voluntarily participating on the football team. In many other instances, consent is expressly stated,
either in a writing or by oral statement. For example, in a non-emergency room setting, surgical
patients will typically be required to complete and sign a form indicating their consent to being

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subjected to a harmful contact (namely, the surgical procedure itself). These forms usually also
require the patient to attest that she has been informed of all relevant risks that attend the surgery.
(See the discussion of informed consent claims in Chapter 3.) There is an example of such a form
below.

2. Implied Consent. Voluntary participation in contact sports is a common example of implicit

consent to harmful contacts. There are innumerable other settings in which a person can be
deemed to have consented to contact that might otherwise be tortious. For example, persons who
enter crowded trains and buses will be deemed to have consented to at least some intentionally
caused jostlings and other contacts, such as being pushed by another as he tries to cram his way
onto the vehicle. We saw above that the Utah Supreme Court in Wagner (Section II) further
suggested that each of us implicitly consents to a range of everyday contacts just by virtue of being
out in the world.

p. 727

Consent to Operation, Treatment, or Other Procedure

1. (1) Date: _________ Time: ___________ a.m. _______ p.m.

(2) I authorize and consent to the performance upon ____________ of the following
operation, treatment, or procedure.

NAME OF PATIENT

__________________________________________________________

__________________________________________________________

__________________________________________________________

to be performed by Dr. ______________ and staff.

2. The nature, advisability, and purpose of the operation, treatment, or other procedure have
been explained to me, together with the benefits hoped to result and the material risks.
Alternatives to the operation, treatment, or other procedure, if any, and the risks of such
alternatives have been explained to me. I understand the explanations that have been given
me, and I understand that no guarantee is offered as to the results of the operation,
treatment, or other procedure.

3. I authorize and consent to the operation, treatment, or other procedure by the physician and
assistants to the physician performing the operation, treatment, or other procedure, by the
nursing staff and by other employees of the ABC Medical Center.

4. I authorize and consent to the administration of anesthesia by the anesthesiology staff of ABC
Medical Center.

5. I understand that during the course of the operation, treatment, or other procedure
unforeseen conditions may be found that make an extension of the original operation,

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treatment, or other procedure advisable. I authorize and consent to such extension or other
operation, treatment, or other procedure as is advisable in the professional judgment of my
physician or physicians.

6. I authorize and consent to the disposal, use, retention, or donation by the ABC Medical
Center at its discretion of all tissues, materials, and substances that would normally be
removed in the course of the operation, treatment, or other procedure.

7. I understand that my physician has determined that I require/may require transfusion of blood
and/or blood products. I understand that the blood products may include risks of fever and
chills (about 1 in 200), allergic reaction with itching, hives (about 1 in 200), and rare severe
allergic reaction (about 1 in 25,000), resulting in death (less than 1 in 1,000,000). In rare
instances there may be a chance of infectious blood borne diseases, including Hepatitis B
(about 1 in 180,000), Hepatitis C (less than 1 in 1,600,000), HIV/AIDS (about 1 in 1,900,000),
as well as other unforeseen risks. I understand that the Red Cross and other blood banks use
precautions to minimize these risks by screening the blood/blood products and in blood
typing.

8. I have been provided with information regarding transfusions and have had the opportunity to
discuss the risks, benefits, alternatives, and risk of no transfusions with my physician. I
hereby authorize and consent to the administration of blood/blood products if deemed
medically necessary by my physician(s).

____________________________
___________ ___________a.m. p.m.
SIGNATURE (PATIENT/PATIENT’S DATE TIME
DATE TIME
LEGALLY AUTHORIZED REPRESENTATIVE

____________________________

WITNESS

*****************

I met with _________ and fully discussed the above-described procedure. Consent cannot be
obtained due to an emergency of the following nature:

__________________________________________________________

__________________________________________________________

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__________________________________________________________

____________________________ ___________ ___________a.m. p.m.

PHYSICIAN SIGNATURE DATE TIME DATE TIME

p. 728

In certain situations, a history of dealings between the parties will support a finding of implicit
consent to contacts beyond ordinary, everyday contacts. For example, if two persons have in the
past playfully punched or shoved one another in certain situations, that fact may permit an
inference of consent to similar contact in a subsequent similar situation. The defense of implied
consent thus often requires judges and juries to make judgments turning on factors such as the
age, gender, and sophistication of the parties, their relationship, if any, and various other
circumstances associated with their interaction.

3. Actual Consent Versus Objective Indicia of Consent. Suppose that D sincerely believes that P
has consented to being harmfully touched, when in fact D is mistaken because he misunderstood
something that P said, or because he misread certain nonverbal cues. If D causes a harmful
touching of P and P sues for battery, may D avoid liability on the ground that he believed that P had
consented? Or must consent actually have been given?

Courts have typically adopted a third route, which is to bar the imposition of liability on D only if, on
the basis of the plaintiff’s conduct, he actually and reasonably believed that P has consented to the
contact. O’Brien v. Cunard S.S. Co., 28 N.E. 266 (Mass. 1891) provides a famous illustration of this
doctrine. O’Brien, a young immigrant, was vaccinated on board defendant’s ship as it brought her
to New York. After suffering an adverse reaction, she sued for battery, alleging that she never
consented to the injection. The court concluded that the ship’s doctor reasonably inferred that
O’Brien consented by virtue of standing in a line of people receiving the vaccination and by holding
out her arm as did others in the line. Thus, even if a jury were to believe that O’Brien’s actual intent
was to refuse the vaccination, the ship’s owner would be free from liability because its doctor
actually and reasonably inferred consent under the circumstances.

According to the Third Restatement, a reasonable but mistaken inference of consent suffices to
establish a consent defense. This is so regardless of whether the defendant’s mistake consists of a
reasonable misinterpretation of something the plaintiff does or says (as in O’Brien), or instead
consists of reasonably relying on mistaken information from an independent source (such as a third
party credibly informing the defendant that plaintiff has consented where there is no evidence to the
contrary). See Restatement (Third) of Torts: Intentional Torts to Persons §16, illus. 5 (Tent. Draft.
No. 4, April 1, 2019) (surgeon who administers medication to patient without patient’s consent is
not subject to battery liability because surgeon reasonably relied on medical software that
mistakenly indicated that patient had consented).

What justifies a rule that would permit an injurer to escape liability on the ground that he reasonably
but mistakenly perceived consent on the part of the victim? Why p. 729should the risk of error with
regard to consent fall on the victim rather than the injurer? Should it make a difference whether the
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defendant’s reasonable but mistaken belief was based on words or conduct of the plaintiff?

4. Implied Consent Versus Hypothetical Consent. As explained in the preceding notes, a defendant
can claim that his touching of the plaintiff was privileged on the basis of plaintiff’s implicit actual
consent and, in some instances, on the basis of his reasonable but mistaken perception that
plaintiff has consented. Can a defendant go further and argue that he was privileged to commit
what would otherwise be a battery of the plaintiff on the ground that the touching was in the
plaintiff’s best interests, and therefore is one to which the plaintiff “would have” or “should have”
consented, even though she did not?

As Koffman implicitly demonstrates, the answer is no. Suppose that D and P are adult friends and
that D knows that P, much to P’s own regret, is a timid soul who is inhibited from undertaking
various potentially pleasurable activities out of excessive fear of physical injury. As they are walking
together one day, D suddenly pushes P down a steep hill, a fall that causes P contusions and a
broken finger. Even if a jury were prepared (implausibly) to believe that D’s action (by
demonstrating to P that minor physical injuries are not something about which to be terrified) was in
P’s best interests, and therefore an act for which P might eventually be grateful, D has no grounds
for claiming privilege. Indeed, battery law’s emphasis on actual consent rests precisely on the
rejection of this sort of paternalistic justification for touchings. (However, as the next case explains,
an intended contact that would otherwise be a battery can sometimes be justified on the distinct
and narrower ground that the defendant actually and reasonably believed it to be necessary to
save the plaintiff from imminent physical harm.)*19

5. Interaction of Intent and Consent. In Mullins v. Parkview Hosp., Inc., 865 N.E.2d 608 (Ind. 2007),
the plaintiff was admitted to the hospital for a hysterectomy. She told her gynecologist that she
wanted privacy during the procedure, and crossed out the portion of the written consent form that
read: “I consent to the presence of healthcare learners.” Additionally, she received assurances from
the anesthesiologist present at her procedure that he would be handling her anesthesia personally.
She then signed a consent form that included a provision stating: “I understand that my
anaesthesia care will be given to me by the undersigned or a physician privileged to practice
anaesthesia.” After plaintiff was anaesthetized, a student in a training program entered the
operating room with a hospital employee/preceptor. The preceptor asked if the student could
intubate Mullins (i.e., place a tube down the patient’s trachea). The anesthesiologist p.
730assented. In performing the procedure, the student, who had never previously attempted an
intubation, lacerated plaintiff’s esophagus. That injury necessitated subsequent surgery, followed by
a month-long hospital stay.

Plaintiff brought claims of negligence, medical malpractice, and battery against the student, the
anesthesiologist, the gynecologist, their practice groups, and the hospital. The trial court granted
summary judgment to all defendants. The intermediate appellate court reinstated plaintiff’s battery
claims against the student, the anesthesiologist, and the gynecologist. The Indiana Supreme court
affirmed this ruling as to the anaesthesiologist and the gynecologist, but reversed as to the claim
against the student, thereby upholding the trial court’s dismissal of that claim. In support of
dismissal, the court emphasized that the student had no reason to suspect that plaintiff had insisted
on modifying the standard consent form. The court then concluded that, because plaintiff could not
show that the student “touched [her] with the intent to cause harm,” this battery claim had to fail. Id.
at 611.

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Is this last holding correct? If so, can it be harmonized with Wagner and the authorities it cites?
Could the Indiana Supreme Court have affirmed the dismissal of the claim against the student on
the alternative ground that the student acted in the reasonable but mistaken belief that the patient
had consented to have trainees participate in her treatment? The Reporters for the Third
Restatement endorse the outcome in Mullins and cite it as an example of the interaction between
the single-intent view of battery (discussed in Note 3 following Wagner, supra) and the doctrine of
apparent consent. See Restatement (Third) of Torts: Intentional Torts to Persons §16, cmt. e (Tent.
Draft No. 4, April 1, 2019).

6. Fraud and Coercion. A tortfeasor cannot benefit from the consent defense if he secures the
victim’s consent by misrepresentation or other forms of deceit. So, for example, if D induces V to
imbibe a poisonous drink by representing that it is wine, D cannot invoke consent as a defense.
Some smokers have attempted to argue that they suffered a battery (or, alternatively, a fraud
resulting in physical injury) at the hands of cigarette manufacturers by being induced to inhale toxic
chemicals on the basis of the manufacturers’ misrepresentations, including the failure to disclose
the presence of toxic additives such as ammonia. See Naegele v. R.J. Reynolds Tobacco Co., 50
P.3d 769 (Cal. 2002) (reversing summary dismissal of claims by an ex-smoker for fraud). In certain
instances, the injurer may owe the victim an affirmative duty to disclose information relevant to the
victim’s decision to consent, such that failure to disclose will constitute fraud. For an interesting and
perhaps unusual application of this rule, see Neal v. Neal, 873 P.2d 871 (Idaho 1994) (in suit by a
wife against an adulterous husband for battery, the jury may find that the husband fraudulently
secured the wife’s consent to sexual intercourse by failing to disclose to her that he was having an
affair).

Consent secured through coercion by the tortfeasor — for example, through physical violence or
threats of violence — also will not count as a defense to a suit for battery. Likewise, consent is not
a defense if (1) the victim lacks the ability or judgment necessary to give meaningful consent, and
(2) a reasonable person in the position of the tortfeasor would perceive this lack of capacity. Lack of
capacity may result from p. 731youth, mental incompetence, or some other condition or
circumstance. See, e.g., Elkington v. Foust, 618 P.2d 37 (Utah 1980) (stepfather not entitled to jury
instruction on consent as a defense against a claim for sexual battery of a minor plaintiff).

7. Subtler Forms of Coercion and Incapacity. Apparent consent will sometimes be deemed
ineffective if the defendant had reason to know that the consent was not freely given. Often in such
cases a critical issue will be whether the alleged tortfeasor occupied a position of power or authority
in relation to the victim. Thus, a patient who sues her therapist for battery based on a “consensual”
sexual encounter between them can argue that the therapist should have known that the patient
was not in a position to make a genuinely free choice about having sex with the therapist. For a
fractured decision addressing several issues related to consent, see Reavis v. Slominski, 551
N.W.2d 528 (Neb. 1996). There, a dentist’s receptionist sued her employer for battery after they
had sex at an office party. A few years earlier, while also working as a receptionist for Slominski,
Reavis had at times acceded to Slominski’s persistent sexual advances. In the instance that took
place at the party, Reavis initially resisted, but eventually acceded. Following the encounter,
Reavis, guilt-ridden, informed her husband of it and then attempted suicide.

In her suit for battery, Reavis claimed that she acquiesced to sex with Slominski out of fear of losing
her job, and because sexual abuse she suffered as a child had habituated her into coping with
sexual aggression by acquiescing. The plurality opinion in Reavis concluded that expert testimony
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as to the effects of the past abuse could be admitted on the issue of whether Reavis lacked the
capacity genuinely to consent, and whether Slominski, based on their encounters a few years
earlier, had reason to know of, and hence was exploiting, this vulnerability when he accosted her at
the party. Concurring justices held that the evidence of abuse should not have been admitted but
that a jury could find that Reavis’s consent was not voluntary because she reasonably feared that
she would lose her job if she did not acquiesce. Several dissenters maintained that the evidence on
past abuse was irrelevant and that a threat of being fired is, as a matter of law, not sufficiently
coercive to vitiate consent to sexual intercourse. (On this last point, note that even if threats to fire
employees are not sufficient to vitiate consent in an action for battery, they often are sufficient to
generate claims for sexual harassment under federal laws applicable to employers of a certain size.
See Chapter 10.)

8. Scope of Consent. As Koffman indicates, even when a court determines that the victim has
expressly or implicitly consented to some harmful or inappropriate contact, the question remains as
to whether the contact in question was of the sort to which the plaintiff consented. While a sport’s
own rules can be relevant to this question, they are not determinative: certain contacts outside the
rules will be deemed consensual. For example, even football tackles that earn penalties will rarely
provide the basis for a successful battery claim. Conversely, contacts that do not violate any formal
rules may still amount to batteries. For an opinion that cites several battery claims arising out of
professional sports, see Green v. Pro Football, Inc., 31 F. Supp. 3d 714, 718, 725 (D. Md. 2014). In
Green the federal district court held that allegations by a professional football player that he
suffered a career-ending injury as a result of an opposing team’s having p. 732adopted a “bounty”
system — a scheme whereby players were rewarded for injuring their opponents — stated a claim
for battery.

In Mohr v. Williams, 104 N.W. 12 (Minn. 1905), the plaintiff voluntarily underwent surgery to improve
her hearing in one ear. During the operation, while the plaintiff was unconscious, the surgeon
determined that the ear in question was not diseased, but that the plaintiff’s other ear was in need
of surgical repair, so he proceeded to operate on it. Despite the fact that procedure apparently went
well and occurred with the permission of Mohr’s family physician, who was in the operating room at
the time, Mohr sued the surgeon for battery and prevailed after the court determined that the
surgeon had exceeded the scope of Mohr’s consent by operating on a different part of the body
than the part that she had consented to have touched. Notice how the consent form, Note 1, supra
deals with this potential source of liability. The negligence case of Largey v. Rothman from Chapter
3, which primarily concerns the doctrine of informed consent, also raises the issue of whether Ms.
Largey, in consenting to a biopsy, had consented to the removal of some of her lymph nodes.

9. Consent to Illegal Activities. As they sometimes do in connection with contractual assumptions of

risk, see Chapter 7, courts will in certain situations deem otherwise valid consents void as against
public policy. In his capacity as co-Reporter for the Second Restatement, John Wade
disapprovingly noted in 1979 that most courts at that time deemed consent ineffective if the
consented-to conduct amounted to a crime. Thus, if two persons chose to engage in a fistfight that
constituted a criminal breach of the peace, either could sue the other for battery. See Restatement
(Second) of Torts §892C (1979) (Reporter’s note).

According to the Third Restatement, a majority of courts have adopted Wade’s approach and thus
maintain that consent to conduct constituting a crime should suffice to establish a defense to a tort
claim unless the conduct in question was rendered criminal by the legislature in part to protect the
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consenting person from his own choices. For example, if A and B were to participate in an
unlicensed boxing match in which A severely injured B, a court might hold that B can sue A for
battery notwithstanding B’s consent to participate in the fight on the ground that the licensing
scheme aimed to protect persons such as B by reducing the risk of gross mismatches, having
competent referees to regulate the contest, etc. See Restatement (Third) of Torts: Intentional Torts
to Persons §16, Illus.10 (Tent. Draft No. 4, April 1, 2019).

B. Self-Defense and Defense of Others

When consent operates as an effective defense it does so out of respect for individual autonomy. At
least under certain conditions, a competent and informed individual is accorded by tort law a right
to choose to experience treatment at the hands of others that, absent the exercise of that choice,
would be wrongful. The remaining defenses to be considered in this chapter do not derive from the
law’s respect for individuals’ capacity to choose. Instead, they recognize that there are situations in
which an actor is entitled to commit a tort such as battery against another.

p. 733Perhaps the most familiar of these entitlements consists of a privilege to use force against
another to defend oneself — for example, the privilege to strike another to ward off the other’s
physical attack. Self-defense in one sense sits quite comfortably within tort doctrine. Essentially, the
privilege permits a person to protect the very bodily integrity that is meant to be protected and
vindicated by torts such as battery. Yet, in another sense, the fit is potentially awkward. One of the
original and most basic functions of tort law is to provide legal redress for victims of wrongs as a
substitute for private violence. To the extent tort recognizes a broad privilege of self-defense, it at
least runs the risk of sanctioning resort to forcible “self-help.” The difficulty of defining lines that will
permit victims to protect themselves without sanctioning private violence is reflected in the various
doctrines that determine the application of the self-defense privilege. The same difficulties are also
apparent (perhaps to an even greater extent) when we encounter in Section III.C the related
privilege to use force to protect one’s property interests.

HAEUSSLER v. DE LORETTO

240 P.2d 654 (Cal. App. 1952)

Vallée, J. Appeal by plaintiff from a judgment for defendant in an action for damages for assault and
battery. The cause was tried by the court without a jury.

The evidence, stated in the light most favorable to the prevailing litigant, discloses that on May 21,
1950, about 10:30 p.m., plaintiff went to the home of defendant, a neighbor, to inquire about his dog
which was missing and which frequently had gone to defendant’s home. The dog had been the
subject of disagreement between the wives of the parties on several previous occasions. When
defendant, in response to plaintiff’s knock, opened the door, the dog ran out from inside the house.
Defendant testified that plaintiff immediately started talking in a loud tone of voice, told him he did
not want defendant or his wife to feed the dog or keep it at their house; that plaintiff kept “waving
his hands, and while he talked, his face was pretty flushed and he was pretty excited, like he had
been drinking, and he kept arguing with me and one word led to another, and I don’t know the man,
but I do know of him. I know he had trouble with the Teamster’s Union and [that another man
named] Frowiss and him beat up a couple of friends of mine, and I got a little afraid, and towards

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the end, after I had asked him to go three times, and he kept waving his hands, I thought he was
going to strike me, and I struck him or pushed him, and I went in and closed the door.” Plaintiff
called the police but no arrest was made nor was any criminal action had.

The court found that plaintiff precipitated the argument; defendant ordered plaintiff to leave his
premises; plaintiff advanced threateningly toward defendant; defendant struck him once; two of
plaintiff’s teeth were loosened, necessitating dental care; defendant used reasonable force in
defense of himself and in removing plaintiff from his premises; plaintiff failed to prove by a
preponderance of evidence that defendant used or attempted to use wilful and unlawful force upon
the person of plaintiff.

The issue of self defense was pleaded by defendant and litigated. The determination of which of
the two parties precipitated the fight, and whether defendant acted in self defense, and whether in
so doing he used more force than was reasonably necessary p. 734under the circumstances, were
questions for the trier of fact. One who is involved in an altercation with another has the right to use
such force as is necessary to protect himself from bodily injury, and the question of the amount of
force justifiable under the circumstances of a particular case is also one for the trier of fact. As the
court found that defendant used reasonable force in defense of himself, it necessarily follows the
force used was not wilful or unlawful and that plaintiff failed to sustain the burden of proof. Since
the conflicts in the evidence were resolved in defendant’s favor, and the foregoing narration of the
evidence supports the findings, this court may not disturb the judgment.

NOTES AND QUESTIONS

1. Self-Defense, Provocation, and Imminence. Self-defense is available to a victim who actually

and reasonably believes it is necessary to injure another to avoid imminent injuries to herself such
as harmful contact or confinement. A longstanding and fierce debate in criminal law concerns
whether a battered spouse, almost always a woman who has been subjugated and repeatedly
abused by her husband, may claim self-defense as a justification for homicide even though the
killing of the abusive spouse occurred at a moment when that spouse posed no imminent threat.
See Dan B. Dobbs, The Law of Torts §72, at 165-166 (2000) (discussing the debate).

The privilege of self-defense typically applies when the injury threatened consists of physical harm,
inappropriate touching, or confinement. By contrast, it does not apply if the conduct in question
threatens only to result in defamation of, or distress to, the victim. Relatedly, the law does not
privilege the use of force to respond to nonthreatening provocations, such as tauntings or teasings.
In many jurisdictions, a person who immediately precipitates the confrontation in which defensive
force is used is barred from invoking the self-defense privilege unless, after precipitating it, the
injurer disengages, or manifests an intent to disengage, such that his provocation ceases to
provide the main impetus for the confrontation. Gortarez v. Smitty’s Super Valu, Inc., 680 P.2d 807
(Ariz. 1984) (if defendant’s security guard is found to have unjustifiably induced fight with patron in
which patron was injured, the guard cannot claim self-defense).

In Landry v. Bellanger, 851 So. 2d 943 (La. 2003), the Louisiana Supreme Court considered the
issues of provocation and self-defense in relation to one another. Two acquaintances were drinking
in a bar. The victim became increasingly belligerent toward the defendant. Eventually, the
defendant asked the plaintiff to step outside, apparently in an effort to avoid a further scene in the

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bar. When plaintiff continued to harangue the defendant and bumped him, the defendant punched
the plaintiff in the face, which caused the plaintiff to fall, resulting in severe injuries. The state’s high
court rejected earlier Louisiana decisions holding that a victim’s initial provocation of a fight
functions to bar him from suing the defendant for injuries caused by the fight. It next concluded that
although Louisiana does not recognize comparative fault as a defense to a claim of battery, a jury
would nonetheless be entitled to apportion responsibility between a batterer and a provoking victim
on the ground that a victim’s provocation of a fight is not a mere act of carelessness, but instead an
“intentional” act. Finally, it p. 735held that this particular plaintiff’s suit was barred because the
defendant’s punch was not merely a response to a provocation, but a reasonable effort to defend
himself against plaintiff’s physical aggression.

2. Objectivity of the Threat. An injurer may invoke self-defense only if he actually and reasonably
perceives an imminent risk of physical injury to himself. Suppose that D mistakenly but reasonably
believes that the person walking purposefully and quickly toward him in the darkness is his
psychotic and violent enemy E, when in fact it is innocent delivery person P, who resembles E. If D
punches P, D can claim the privilege of self-defense as against a battery claim by P? If D
recognizes P or should recognize P for who he actually is, yet punches him, D will have no
defense, even if he harbored the sincere but unreasonable belief that delivery persons routinely
attack people. As with the determination of reasonableness in negligence law, the reasonableness
of D’s perception of the threat to him is judged in light of the surrounding circumstances. Thus a
jury can give D greater leeway to respond forcibly to perceived threats in an emergency situation
than in a situation more conducive to the exercise of prudence.

3. Proportionality and Deadly Force. As Haeussler indicates, the injurer’s response must be
reasonable not only in being grounded in a reasonable perception of imminent harm but also in
consisting of an appropriate or proportional response to the perceived threat. The issue of
proportionality arises most starkly when the alleged tortfeasor uses deadly force, that is, force
intended or calculated to cause death. As a rule, the use of this degree of force is only justified
when the injurer actually and reasonably perceives that the victim is threatening him with imminent
death or serious bodily injury. See Price v. Gray’s Guard Serv., Inc., 298 So. 2d 461 (Fla. Ct. App.)
(a security guard who was attacked from behind and being beaten with his own club was privileged
to shoot his assailants), cert. denied, 305 So. 2d 208 (Fla. 1974). By contrast, a victim who
reasonably perceives that he is about to be slapped, or subjected to a nonharmful yet offensive
battery, or nonviolent confinement in the manager’s office of a department store, will not be able to
invoke self-defense to justify the use of deadly force.

4. Conditional Threats. Suppose A approaches B as B is withdrawing cash from an ATM during

daylight hours on a quiet street. A says to B: “Give me your money, and you won’t get hurt.” May B
use force against A? Deadly force? According to the Second Restatement, B is privileged to use
non-deadly force, and to use deadly force unless the factfinder determines that B actually or
reasonably believed that he could secure his safety by handing the money to A. Restatement
(Second) of Torts §§63, 65(3) (1965). The Reporters for the Third Restatement have opined that
§65(3) is too broad in that it requires persons subjected to unlawful threats to relinquish important
rights they should not be required to relinquish. See Restatement (Third) of Torts: Intentional Torts
to Persons §23, cmt. h (Tent. Draft No. 5, April 15, 2020). Although §23 has not yet been approved
as the time of publication, it is likely to endorse rules that allow for greater use of deadly force,
including perhaps in the envisioned case of A and B.

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5. Dwellings, Retreat, and “Stand Your Ground” Laws. Suppose S, sleeping upstairs alone in
her home, awakens to hear someone coming up the stairs toward her room. Is p. 736S entitled to
reach for the gun in her night table and fire it the moment the person enters her room? The Second
Torts Restatement suggests that a person may use deadly force whenever she is being “attacked”
in her “dwelling.” Restatement (Second) of Torts §65(2), at 108-09 (1965). Now suppose A hears a
commotion near the entrance to a barn located on her property 100 feet from her dwelling. If A
spies a person attempting to break into the barn, may she shoot at him? See Goldfuss v. Davidson,
679 N.E.2d 1099 (Ohio 1997) (defendant not entitled to a self-defense instruction on facts similar to
these). The Reporters for the Third Restatement have proposed the following rule: One is
privileged to use deadly force against someone committing a burglary of one’s own dwelling if the
act of burglary puts one “in peril of bodily harm,” which peril can only be “safely prevented by the
immediate use of deadly force.” See Restatement (Third) of Torts: Intentional Torts to Persons
§23(a)(2) (Tent. Draft No. 5, April 15, 2020).

The propriety of using deadly force is sometimes bound up with the notion of “safe retreat” — the
thought being that, if one actually believes that one can safely retreat from a confrontation that
would otherwise justify the use of deadly force (say, by fleeing), one is not justified in using deadly
force. Restatement, supra, §65(3), at 109. The Restatement’s rule of retreat does not apply,
however, to the use of non-deadly force or to the use of deadly force to ward off an intruder’s attack
in one’s dwelling. Id. §§63(2), 65(2)(a).

A number of states have adopted so-called “Stand Your Ground” laws that expand the privilege to
use deadly force. For example, a Florida law eliminates entirely the duty to retreat. Fla. Stat.
§776.012 (a person who reasonably believes that use of force or threat of force against another is
necessary to defend herself from the imminent use of unlawful force by the other has no duty to
retreat if she is in a place where she has right to be and is not engaged in criminal conduct).
Another provision denies a defendant the right to claim self-defense if he or she “initially provokes
the use of force or threat of force against himself or herself.” Fla. Stat. §776.041(2). However, this
“provocation” exception to the right of self-defense does not apply if: (a) force or threat of force is
being used against the provoker after the provoker has withdrawn from the initial engagement; or
(b) the force being used against the provoker is “so great” that the provoker reasonably believes
that he is in imminent danger of death or serious bodily harm, and that he has “exhausted every
[other] reasonable means to escape such danger . . . .” Id. Although these provisions form part of
the state’s criminal code, and are typically invoked by criminal defendants, they also apply to tort
actions and have occasionally been invoked in an effort to defeat civil liability. See, e.g., Shehada v.
Tavss, 965 F. Supp. 2d 1358, 1377 (S.D. Fla. 2013) (denying summary judgment to city and police
officer in suit alleging that officer used excessive force in fatally shooting plaintiffs’ decedent).

Florida’s Stand Your Ground laws became the object of national attention as a result of the 2012
fatal shooting of Trayvon Martin, an unarmed African American teenager, by neighborhood watch
volunteer George Zimmerman. Zimmerman was charged with the crimes of second-degree murder
and manslaughter. Claiming that their client never had an opportunity to retreat, Zimmerman’s
attorneys disavowed reliance on the Stand Your Ground laws, and instead invoked common law
self-defense principles. However, the trial judge instructed jurors that, if they were to conclude that
p. 737Zimmerman was not engaged in unlawful activity at the time of the incident, and was
attacked in a place in which he had a right to be, then he was under no duty to retreat. The judge
further instructed jurors that, under Florida law, they could convict Zimmerman only if they were

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convinced beyond a reasonable doubt that he was not legally justified in using deadly force (i.e.,
only if they were virtually certain that Zimmerman was unreasonable to believe that his use of
deadly force against Martin was necessary to avoid imminent death or great bodily harm). The six-
person jury acquitted Zimmerman.

With certain exceptions, the Stand Your Ground laws also grant to a defendant an irrebuttable
presumption that she acted on the basis of a reasonable apprehension of imminent death or
seriously bodily harm if her victim: (a) was unlawfully and forcibly entering, or had unlawfully or
forcibly entered, a dwelling, residence, or occupied vehicle; and (b) the defendant knew or had
reason to believe that an unlawful and forcible entry was occurring or had occurred. See, e.g., Fla.
Stat. §§776. 013, 776.031. Suppose P and his accomplice A break into D’s house, unaware that D
is home. D, who is out of sight in an upstairs bedroom, overhears P in a low voice saying to A:
“Come on A, I’m scared; let’s just grab this TV and get out of here before we get caught.” D calls
911. The dispatcher tells D that police will arrive in minutes and instructs D to hide in a locked
room. Instead, armed with a gun, D quietly proceeds to the landing overlooking his first-floor front
hallway. There he sees P and A with their backs to him, carrying his TV toward the front door.
Under the Florida Stand Your Ground law is D privileged to shoot P and A in “self-defense”?

6. Defense of Others Versus Defensive Use of Others. The privilege to injure an attacker for the
purpose of defending others operates more or less under the same rules that govern the privilege
of self-defense. Thus, so long as D actually and reasonably believes that injuring P is necessary to
avoid an imminent injury of the requisite type to one or more third parties, D is privileged to use
proportionate force against P to prevent such injuries. By contrast, the necessity of sparing oneself
from injury is generally held insufficient to excuse the injuring of an innocent third party. So, for
example, if X were to grab innocent bystander Y to shield himself from Z’s physical attack, resulting
in bodily injury to Y, X will be held liable to Y for battery. Compare the discussion of necessity in
connection with trespass to land in Chapter 11, infra.

C. Defense and Recapture of Property

KATKO v. BRINEY

183 N.W.2d 657 (Iowa 1971)

Moore, C.J. The primary issue presented here is whether an owner may protect personal property
in an unoccupied boarded-up farm house against trespassers and thieves by a spring gun capable
of inflicting death or serious injury.

We are not here concerned with a man’s right to protect his home and members of his family.
Defendants’ home was several miles from the scene of the incident to which we refer infra.

p. 738Plaintiff’s action is for damages resulting from serious injury caused by a shot from a 20-
gauge spring shotgun set by defendants in a bedroom of an old farm house which had been
uninhabited for several years. Plaintiff and his companion, Marvin McDonough, had broken and
entered the house to find and steal old bottles and dated fruit jars which they considered antiques.

At defendants’ request plaintiff’s action was tried to a jury consisting of residents of the community

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where defendants’ property was located. The jury returned a verdict for plaintiff and against
defendants for $20,000 actual and $10,000 punitive damages.

After careful consideration of defendants’ motions for judgment notwithstanding the verdict and for
new trial, the experienced and capable trial judge overruled them and entered judgment on the
verdict. Thus we have this appeal by defendants . . . .

Most of the facts are not disputed. In 1957 defendant Bertha L. Briney inherited her parents’ farm
land in Mahaska and Monroe Counties. Included was an 80-acre tract in southwest Mahaska
County where her grandparents and parents had lived. No one occupied the house thereafter. Her
husband, Edward, attempted to care for the land. He kept no farm machinery thereon. The
outbuildings became dilapidated.

For about 10 years, 1957 to 1967, there occurred a series of trespassing and housebreaking
events with loss of some household items, the breaking of windows and “messing up of the
property in general.” The latest occurred June 8, 1967, prior to the event on July 16, 1967 herein
involved.

Defendants through the years boarded up the windows and doors in an attempt to stop the
intrusions. They had posted “no trespass” signs on the land several years before 1967. The nearest
one was 35 feet from the house. On June 11, 1967 defendants set “a shotgun trap” in the north
bedroom. After Mr. Briney cleaned and oiled his 20-gauge shotgun, the power of which he was well
aware, defendants took it to the old house where they secured it to an iron bed with the barrel
pointed at the bedroom door. It was rigged with wire from the doorknob to the gun’s trigger so it
would fire when the door was opened. Briney first pointed the gun so an intruder would be hit in the
stomach but at Mrs. Briney’s suggestion it was lowered to hit the legs. He admitted he did so
“because I was mad and tired of being tormented” but “he did not intend to injure anyone.” He gave
no explanation of why he used a loaded shell and set it to hit a person already in the house. Tin
was nailed over the bedroom window. The spring gun could not be seen from the outside. No
warning of its presence was posted.

Plaintiff lived with his wife and worked regularly as a gasoline station attendant in Eddyville, seven
miles from the old house. He had observed it for several years while hunting in the area and
considered it as being abandoned. He knew it had long been uninhabited. In 1967 the area around
the house was covered with high weeds. Prior to July 16, 1967 plaintiff and McDonough had been
to the premises and found several old bottles and fruit jars which they took and added to their
collection of antiques. On the latter date about 9:30 p.m. they made a second trip to the Briney
property. They entered the old house by removing a board from a porch window which was without
glass. While McDonough was looking around the kitchen area plaintiff went to another part of the
house. As he started to open the north bedroom door the shotgun went off striking him in the right
leg above the ankle bone. Much of his leg, including part of the tibia, was blown away. Only by
McDonough’s assistance was plaintiff able to get out of p. 739the house and after crawling some
distance was put in his vehicle and rushed to a doctor and then to a hospital. He remained in the
hospital 40 days.

Plaintiff’s doctor testified he seriously considered amputation but eventually the healing process
was successful. Some weeks after his release from the hospital plaintiff returned to work on
crutches. He was required to keep the injured leg in a cast for approximately a year and wear a

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special brace for another year. He continued to suffer pain during this period.

There was undenied medical testimony plaintiff had a permanent deformity, a loss of tissue, and a
shortening of the leg.

The record discloses plaintiff to trial time had incurred $710 medical expense, $2056.85 for hospital
service, $61.80 for orthopedic service and $750 as loss of earnings. In addition thereto the trial
court submitted to the jury the question of damages for pain and suffering and for future disability.

Plaintiff testified he knew he had no right to break and enter the house with intent to steal bottles
and fruit jars therefrom. He further testified he had entered a plea of guilty to larceny in the
nighttime of property of less than $20 value from a private building. He stated he had been fined
$50 and costs and paroled during good behavior from a 60-day jail sentence. Other than minor
traffic charges this was plaintiff’s first brush with the law. On this civil case appeal it is not our
prerogative to review the disposition made of the criminal charge against him.

The main thrust of defendants’ defense in the trial court and on this appeal is that “the law permits
use of a spring gun in a dwelling or warehouse for the purpose of preventing the unlawful entry of a
burglar or thief.” . . .

In the statement of issues the trial court stated plaintiff and his companion committed a felony when
they broke and entered defendants’ house. [In its instructions to the jury, the court stated that
property owners are not permitted to use excessive force, including force calculated to cause death
or great bodily harm, to protect their property except to prevent the commission of felonies of
violence and where human life is in danger. The instructions explained that breaking and entering is
not a felony of violence.] . . .

The overwhelming weight of authority, both textbook and case law, supports the trial court’s
statement of the applicable principles of law . . . .

Restatement of Torts [First], section 85, page 180, states:

The value of human life and limb, not only to the individual concerned but also to society, so
outweighs the interest of a possessor of land in excluding from it those whom he is not willing to
admit thereto that a possessor of land has, as is stated in §79, no privilege to use force intended or
likely to cause death or serious harm against another whom the possessor sees about to enter his
premises or meddle with his chattel, unless the intrusion threatens death or serious bodily harm to
the occupiers or users of the premises . . . . A possessor of land cannot do indirectly and by a
mechanical device that which, were he present, he could not do immediately and in person.
Therefore, he cannot gain a privilege to install, for the purpose of protecting his land from intrusions
harmless to the lives and limbs of the occupiers or users of it, a mechanical device whose only
purpose is to inflict death or serious harm upon such as may intrude, by giving notice of his
intention to inflict, by p. 740mechanical means and indirectly, harm which he could not, even after
request, inflict directly were he present.

In Volume 2, Harper and James, The Law of Torts, section 27.3, pages 1440, 1441, this is found:
“The possessor of land may not arrange his premises intentionally so as to cause death or serious
bodily harm to a trespasser. The possessor may of course take some steps to repel a trespass. If

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he is present he may use force to do so, but only that amount which is reasonably necessary to
effect the repulse. Moreover if the trespass threatens harm to property only — even a theft of
property — the possessor would not be privileged to use deadly force, he may not arrange his
premises so that such force will be inflicted by mechanical means. If he does, he will be liable even
to a thief who is injured by such device.” . . .

[The court reviewed the holdings of similar cases from Iowa and other jurisdictions holding property
owners liable for causing injury by means of excessive force.] In addition to civil liability many
jurisdictions hold a land owner criminally liable for serious injuries or homicide caused by spring
guns or other set devices.

In Wisconsin, Oregon and England the use of spring guns and similar devices is specifically made
unlawful by statute.

The legal principles stated by the trial court in [its] instructions . . . are well established and
supported by the authorities cited and quoted supra. There is no merit in defendants’ objections
and exceptions thereto. Defendants’ various motions based on the same reasons stated in
exceptions to instructions were properly overruled.

Plaintiff’s claim and the jury’s allowance of punitive damages, under the trial court’s instructions
relating thereto, were not at any time or in any manner challenged by defendants in the trial court
as not allowable. We therefore are not presented with the problem of whether the $10,000 award
should be allowed to stand . . . .

Larson, J. (dissenting). I respectfully dissent, first, because the majority wrongfully assumes that by
installing a spring gun in the bedroom of their unoccupied house the defendants intended to shoot
any intruder who attempted to enter the room. Under the record presented here, that was a fact
question. Unless it is held that there property owners are liable for any injury to a intruder from such
a device regardless of the intent with which it is installed, liability under these pleadings must rest
upon two definite issues of fact, i.e., did the defendants intend to shoot the invader, and if so, did
they employ unnecessary and unreasonable force against him? . . .

[Judge Larson’s dissent first maintained that the jury should have been instructed that it could not
impose liability unless it found that the defendants had intended to kill or seriously injure an intruder
by setting up the spring gun. It further maintained that a reasonable jury could have found that such
intent was lacking given Mr. Briney’s testimony that the gun was set up to “scare” intruders, and
that he (Briney) did not expect the buckshot to go through the bedroom door “quite that hard.” The
dissent then turned to the issue of punitive damages. — Eds.]

In the case at bar the plaintiff was guilty of serious criminal conduct, which event gave rise to his
claim against defendants. Even so, he may be eligible for an award of compensatory damages
which so far as the law is concerned redresses him and places p. 741him in the position he was
prior to sustaining the injury. The windfall he would receive in the form of punitive damages is
bothersome to the principle of damages, because it is a response to the conduct of the defendants
rather than any reaction to the loss suffered by plaintiff or any measurement of his worthiness for
the award.

When such a windfall comes to a criminal as a result of his indulgence in serious criminal conduct,

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the result is intolerable and indeed shocks the conscience. If we find the law upholds such a result,
the criminal would be permitted by operation of law to profit from his own crime . . . .

We cannot in good conscience ignore the conduct of the plaintiff. He does not come into court with
clean hands, and attempts to make a claim to punitive damages in part on his own criminal
conduct. In such circumstances, to enrich him would be unjust, and compensatory damages in
such a case itself would be a sufficient deterrent to the defendant or others who might intend to set
such a device . . . .

The admonitory function of the tort law is adequately served where the compensatory damages
claimed are high and the granted award itself may act as a severe punishment and a deterrence. In
such a case as we have here there is no need to hold out the prospect of punitive damages as an
incentive to sue and rectify a minor physical damage such as a redress for lost dignity. Certainly
this is not a case where defendants might profit in excess of the amount of reparation they may
have to pay . . . .

NOTES AND QUESTIONS

1. Katko’s Aftermath. According to Geoffrey Palmer, while their appeal to the Iowa Supreme Court
was pending, the Brineys sold their farm to pay the judgment to Katko. The case apparently
garnered considerable public attention, prompting the publication of strongly opinionated letters on
both sides of the issue in Iowa newspapers. Sympathizers with the Brineys raised $7,000 in
contributions. The state legislature took up legislation designed by its supporters to enhance the
ability of property owners to use deadly force to protect their property, but the legislation was not
enacted.

2. Other Security Measures and Other Victims. By what means were the Brineys entitled to
protect their property? Prior to Katko’s attempted robbery, they had boarded up the farmhouse and
apparently had complained to police about the previous break-ins, but to no effect. Is the majority
saying that they had no choice but to allow thieves to break in? Suppose the Brineys kept in the
farmhouse a large dog that was trained to attack intruders. Would they be subject to liability under
the reasoning of Katko? In this regard, consider the various opinions issued in Mech v. Hearst
Corp., 496 A.2d 1099 (Md. Ct. App.), cert. denied, 501 A.2d 1323 (Md. 1985), in which the judges
differed over whether use of a vicious guard dog to ward off trespassers is always reasonable as a
matter of law, or whether, under certain circumstances, a jury might find that a guard dog serves as
the equivalent of a spring gun.*20

p. 742Suppose the person who was shot was not an intruder looking to steal the Brineys’ property,
but B, a 12-year-old boy who broke into the farmhouse because he thought it would make a “cool
hideout.” Or suppose A, an adult who was in the market to buy an old farmhouse, was told by a
local realtor to “take a look at” a different farmhouse quite near the Brineys’, and that A entered the
Brineys’ farmhouse in the mistaken belief that he was entitled to force his way in. Does either of
these claimants present a stronger claim for recovery than Katko? If so, are we to conclude that the
amount of force one may reasonably use to protect property varies according to the nature of the
intruder and the reasons for his intrusion? Is one problem with a spring gun that it cannot
discriminate between different sorts of intruders and intrusions?

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3. Punitive Damages. As discussed in detail in Chapter 8, the typical relief accorded to a

successful tort plaintiff comes in the form of a compensatory damage payment made by the
tortfeasor to the plaintiff. As their name suggests, compensatory damages aim to compensate the
plaintiff for losses he has suffered as a result of the tort. Punitive damages, by contrast, consist of
damages above and beyond the amount necessary to compensate the plaintiff, thereby providing
an additional increment of redress to the victim while also “sending a message” to the tortfeasor
that such conduct is unacceptable, as well as a message to others that similar conduct may result
in significant penalties. Compensatory damages are available to any tort claimant who can prove
that he has suffered loss as a proximate result of the tort. These include economic (out-of-pocket)
losses, such as medical bills incurred, losses in the form of property damage, and loss of past and
future income. They also include noneconomic losses, such as pain and suffering. Punitive
damages are only available to claimants who can establish that the tortfeasor committed a
malicious or willful wrong, or a wrong that displays reckless disregard for others’ well-being. Even
then, their award is entirely discretionary with the factfinder.

Because batteries often consist of violent attacks, successful battery plaintiffs typically recover
damages reflecting out-of-pocket losses such as medical bills. However, in the case of offensive-
contact batteries, out-of-pocket losses may be quite modest. Still, even this sort of battery victim
may recover a substantial compensatory award reflecting any pain, embarrassment, or humiliation
he experienced. In addition, to the extent a battery plaintiff has been the victim of willful or wanton
misconduct, he will be in a position to seek punitive damages. See, e.g., Jones v. Fisher, 166
N.W.2d 175 (Wis. 1969) (employee who suffered the indignity of being held down by one employer
while having her dentures forcibly removed by another is entitled to punitive damages). On the
other hand, some batteries — for example, a harmful touching caused intentionally by a defendant
in a mistaken but sincere effort at self-defense — might not display sufficient willfulness or
wantonness to warrant a punitive award.

In his Katko dissent, Judge Larson invokes the doctrine of “unclean hands,” an equitable doctrine
that is applied by courts faced with requests for injunctive relief as opposed to damages. For
example, suppose H, the holder of a patent on a particular pain-relieving medicine, requests a court
order halting the sale of company I’s pain-relief product on the ground that it infringes on H’s patent.
Now suppose there is evidence that H himself had engaged in fraud in the course of securing its
patent by p. 743knowingly submitting false documentation to the Patent Office. In light of that
evidence, the court might decline to exercise its equitable power to issue the requested injunction
on the ground that those seeking an injunction must themselves have “clean hands.”

Does a similar rationale warrant a ruling that Katko — who was apparently looking to grab a few
empty bottles from an unused dwelling — was not entitled to any punitive damages? If it applies to
punitive damages, should it also bar him from collecting compensatory damages? Or is there
something special about punitive damages that would warrant subjecting a claim for them to a
special equitable principle?

4. Recapture of Property. As a rule, the privilege to use reasonable force to defend property
applies only preventively. However, if the property has, in the owner’s absence, momentarily been
occupied by an intruder who has no right to be there, the owner may use reasonable force to
remove him. Thus, if the Brineys had decided to visit the farmhouse just as Katko arrived, they
could have undertaken reasonable efforts to remove him. By contrast, if an owner were forcibly to
evict a person who is not entitled to occupy land, yet who enjoys “peaceable,” nontransitory
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possession of it (e.g., a tenant whose lease has expired), the owner runs the risk of criminal
penalty, and in some instances tort liability, to the wrongful possessor, even if the amount of force
used by the owner is deemed reasonable. See Dan B. Dobbs, et al., The Law of Torts §80, at 181-
186 (2000). Here, the aim of the law is to discourage self-help and encourage owners to apply to
the courts for relief.

Even in situations of transitory occupation in which the owner is, in principle, permitted to take
steps to eject the trespasser, the ejection must be reasonable given the circumstances. For
example, absent an imminent threat of bodily harm or death, an owner may not respond to a
trespass in a manner that risks imminent and serious bodily harm to the trespasser. In Whitten v.
Cox, 799 So. 2d 1 (Miss. 2000), the plaintiffs were driving their pickup truck across defendant’s land
on their way to an adjacent property. The defendant fired his gun at the truck, forced the plaintiffs
out of the truck at gunpoint, and handcuffed, physically abused, and threatened to kill them. The
Mississippi Supreme Court upheld verdicts for the plaintiffs on claims of battery, assault, and false
imprisonment, ruling that the jury was entitled to find that the defendant acted unreasonably in
asserting his property rights as he did.

5. Recapture of Personal Property. Roughly the same framework applies to efforts to recapture
personal possessions (chattels). Thus, once “peaceable” possession of the property is enjoyed by
another, the owner may not seek to retrieve it through the use of force without risking criminal or
tort liability. However, a possessor may use reasonable force against another if the other has
obtained only momentary possession of the property. Under the Uniform Commercial Code, a
person or entity that has sold a good to another on credit, and who under the terms of the sale is
entitled to repossess it for lack of timely payments, may repossess the good so long as the
repossession does not involve a “breach of the peace.” Thus, if car dealer C sells a car on credit to
buyer B, and B fails to make required payments, such that C is entitled under the sales contract to
repossess, C may proceed to tow the car away, even if it is parked in the publicly accessible
driveway on B’s property. C may not repossess, p. 744however, if doing so involves the use of
force against B or another, or breaking and entering onto B’s property.

While the owner or possessor of personal property thus enjoys a qualified privilege to recapture it,
the privilege does not protect the owner who mistakenly seizes property that is not actually hers.
Suppose that A leaves her expensive and distinctively colored mountain bike in the doorway of a
store while she buys a bottle of water. Suppose that moments later she comes out of the store,
discovers that the bike is missing, and sees B riding nearby on a bike of the same appearance. A is
privileged to use reasonable force to wrestle the bike away from B if it turns out that the bike
actually is A’s. However, if A is mistaken, because B just happens to have an identical bike, B will
be able to sue A for battery. This result follows even if A was entirely reasonable in believing that
the bike on which B was riding was A’s. The limited privilege to recapture personal property is thus
exercised at the possessor’s peril.

IV. FALSE IMPRISONMENT

The right to liberty has long been identified as one of the most important rights that Anglo-American
law aspires to protect. Liberty has many dimensions, including freedom of thought and conscience,
freedom of speech, and freedom to associate with others. But perhaps the most basic component

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of liberty is physical freedom — freedom of movement. It is no surprise, then, to find that the
common law of tort has long accorded redress to those who have been subjected to the indignity of
being confined by another. The primary doctrine by which that relief has been provided is through
the tort of false imprisonment. Consider how this venerable cause of action applies in the following
modern setting.

A. Elements

FOJTIK v. CHARTER MED. CORP.

985 S.W.2d 625 (Tex. Ct. App. 1999)

Chavez, J. Felix Fojtik appeals from . . . summary judgment entered against him on his claim
against Charter Medical Corporation. Fojtik had brought a false imprisonment cause of action
against Charter arising from his stay at a Charter hospital where he was treated for alcoholism . . . .
We affirm the judgment of the trial court . . . .

Background Facts

Fojtik’s admission to Charter was preceded by an “intervention,” where Dorrill Nabours and Valerie
Bullock from Charter, along with a group of Fojtik’s family and friends, confronted him and told him
that he needed to go through an inpatient treatment at Charter for alcohol abuse. Fojtik’s medical
records indicate that he told Charter staff he had admitted himself to Charter because those
conducting the “intervention” had told him that, if he did not voluntarily admit himself, they would
have p. 745him committed to the hospital and have him brought in wearing handcuffs.2 When
admitted, Fojtik was angry about being at Charter and refused to be photographed or to agree to
permit Charter to contact him after he left the treatment program. While at the hospital Fojtik made
several requests for a “pass” permitting him to leave the Charter facility. His initial requests were
denied on the ground that he was not “eligible” for a pass until he was further into his stay. Fojtik
expressed his opinion that he was getting a “raw deal” because he was “locked up and couldn’t get
away.” Later Fojtik was granted passes for a few hours at a time, and always returned to Charter
voluntarily and on time. Fojtik explained that he had vowed to follow all of the rules at Charter.
Although nothing in the record explains the reason Fojtik made this “vow,” he argues on appeal that
he had decided to follow all the rules only because he hoped that obedient behavior might speed
his release.

Charter produced summary judgment evidence that Fojtik was free to leave at any time. Charter
employees explained that, although they used a system of “passes” and preferred to follow certain
procedures when patients left the hospital, if a patient insisted on leaving without following Charter
procedures, Charter would permit the patient to leave. Charter also refers us to Fojtik’s admission
documents, which indicate that he consented to inpatient treatment.

Legal Standards

. . . The elements of a false imprisonment cause of action are: (1) willful detention by the
defendant, (2) without consent of the detainee, and (3) without authority of law. A detention may be
accomplished by violence, by threats, or by any other means that restrain a person from moving

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from one place to another. Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 645 (Tex. 1995).

Where it is alleged that a detention is effected by a threat, the plaintiff must demonstrate that the
threat was such as would inspire in the threatened person a just fear of injury to his person,
reputation, or property. Id. Threats to call the police are not ordinarily sufficient in themselves to
effect an unlawful imprisonment. Morales v. Lee, 668 S.W.2d 867, 869 (Tex. App. — San Antonio
1984, no writ) (citing W. Prosser, Torts §11 (4th ed. 1971)). In determining whether such threats are
sufficient to overcome the plaintiff’s free will, factors such as the relative size, age, experience, sex,
and physical demeanor of the participants may be considered . . . .

Whether Fojtik Was Restrained

Although Fojtik was not physically restrained, he alleges that he was detained against his will by
threats that, if he did not submit to his detention, he would be forcibly committed and “brought in in
handcuffs.” Fojtik also contends that Charter used “other means” in addition to threats of
commitment in order to restrain him. We first p. 746consider whether the evidence raises a
question of fact regarding whether Fojtik was restrained by threats.

A review of false imprisonment case law is instructive. In Black v. Kroger, 527 S.W.2d 794 (Tex.
App. — Houston [1st Dist.] 1975, writ dism’d) an eighteen year old woman with a tenth grade
education and a two-year-old daughter was accused by her employers of stealing. She was led into
a small, windowless room lit by bare light bulbs, where the store manager and another man who
worked for “Kroger Security” were waiting. She was told repeatedly that they knew she had been
stealing, and that if she did not admit to stealing they would handcuff her and take her to jail. She
testified that she made a false confession, explaining “I just had it in my head that they were going
to put me in jail no matter what I did, and I wasn’t going to see my little girl for a long, long time.”
The court noted the woman’s lack of business experience and the harsh and intimidating nature of
her questioning. Black, 527 S.W.2d at 800. The court held that under these facts the jury could
have reasonably concluded that the threats to the woman intimidated her to the point where she
was not free to leave and was unreasonably detained. Id. at 801.

Skillern & Sons, Inc. v. Stewart, 379 S.W.2d 687 (Tex. Civ. App. — Fort Worth 1964, writ ref’d n.r.e)
presents a similar set of facts. A female employee was accused of stealing. She was led by the arm
to a room where two men she had never met beat on a desk while telling her “we have the goods
on you . . . we know you’ve been stealing money.” She was threatened with imprisonment, and
told that she could not leave until she wrote a confession. She managed to leave, but was ordered
back, and again told that she would either sign a confession or she would go to jail, but that she
could not leave without confessing. When she tried to stand up she was physically pushed back
into a chair by her accusers. These facts were held to support a recovery for false imprisonment.

In Safeway Stores, Inc. v. Amburn, 388 S.W.2d 443 (Tex. App. — Fort Worth 1965, no writ) the
evidence was held insufficient to support a finding that the plaintiff was falsely imprisoned. In this
case as well, an employee was led to a secluded room where others were waiting to accuse him of
theft. The employee’s path to the door, if he had desired to leave, was not blocked. The only
physical contact between the employee and his accusers was a handshake. When the employee
denied stealing anything he was accused of lying and threatened with jail. The employee spent
thirty to forty minutes with his accusers. The court held that, where there is nothing else particularly
overbearing about this kind of meeting, threats of imprisonment are not enough to establish a claim

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for false imprisonment, and the court reversed the jury’s verdict in the plaintiff’s favor.

In Randall’s Food Markets, Inc. v. Johnson, 891 S.W.2d 640 (Tex. 1995), the plaintiff was a store
employee accused of stealing. She was told to either wait in an office or to work on a volunteer
project in a particular area. She waited in the office, but left twice and returned each time. The
Texas Supreme Court rejected the plaintiff’s contention that the store management had impliedly
threatened her person, because no one was guarding her and she had in fact left the office twice.
Summary judgment in favor of the store on the employee’s false imprisonment claim was upheld.

p. 747In evaluating Fojtik’s claim of false imprisonment, the issue is essentially this: to what extent
must plaintiffs insist on their freedom and have it denied to them before they can recover for false
imprisonment? Under some circumstances, a combination of the plaintiff’s vulnerability and
oppressive circumstances permit recovery, even when the plaintiff does not actually resist their
detention. Comparing the facts of this case to previous reported cases, however, indicates that this
is not one of those cases. None of the factors that are considered in evaluating whether threats are
sufficient to overcome the plaintiff’s free will, i.e., the relative size, age, experience, sex, and
physical demeanor of the participants, weigh in Fojtik’s favor. Fojtik was a forty-five-year-old man
who had run several businesses. He was not a young, inexperienced woman, like the plaintiff in
Black. He was not physically restrained, like the plaintiff in Skillern. Although he was threatened
with the police, there were no other factors adding to the intimidating effect of those threats, and, as
in Amburn, such threats, standing alone, are not enough to establish false imprisonment. Fojtik left
and voluntarily returned, as the plaintiff did in Johnson, where the plaintiff’s actions were held to
negate her false imprisonment theory.

Fojtik contends that his frequent comments at Charter about being “locked up” and his generally
uncooperative attitude are evidence that he did not consider himself free to leave. While it may be
true that Fojtik considered himself restrained, the issue is not Fojtik’s subjective interpretation of his
situation, but rather whether he had a “just fear of injury.” Randall’s v. Johnson, 891 S.W.2d at 645.
The facts of this case do not raise a fact issue on whether Fojtik had a “just fear” of injury. The
record before us indicates that, while Fojtik certainly complained about being at Charter, he never
insisted that he be permitted to leave. As discussed above, there is nothing in this case to suggest
that Fojtik was a person whose weakness or susceptibility to intimidation might excuse his failure to
insist on leaving . . . .

Aside from threats of legal commitment, the “other means” of restraint identified by Fojtik are: (1)
constantly telling him that he was an alcoholic and treating him as though he were, and (2)
permitting him to leave on temporary passes. Appellant’s argument appears to be that these
methods lessened his will to insist on being released. We do not believe that such trifling matters
as these constitute restraint. Treating Fojtik as an alcoholic did not restrain him; if it contributed to
his ongoing presence at the Charter hospital, it did so by persuading Fojtik that he did have a
problem with alcohol that should be addressed, not by any actual restraint. The fact that Charter
permitted Fojtik to leave on passes undermines his claim for false imprisonment rather than
supporting it . . . .

NOTES AND QUESTIONS

1. Elements. Note that the Fojtik court treats “lack of consent” and “absence of authority” as

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elements of the prima facie case, as to which the plaintiff presumably bears the burden of
persuasion. The Third Restatement of Torts similarly deems lack of consent to be an element.
Restatement (Third) of Torts: Intentional Torts to Persons §7 (Tent. Draft. No. 3, April 6, 2018). In
keeping with its presentation of battery and assault, this book defines false imprisonment in a
manner that instead treats consent and authority as affirmative defenses:

p. 748False Imprisonment: Prima Facie Case

Actor A is subject to liability to other person P for false imprisonment if:

1. A acts,

2. intending to confine P;

3. A’s act causes P to be confined; and

4. P is aware of her confinement.

2. Damages Versus Release: Habeas Corpus. Like other torts, false imprisonment can be
perpetrated by a private citizen or by a government official. False imprisonment, however, is more
closely linked with official misconduct than some other torts because confinements, as opposed to
other injuries, often come in the form of detentions at the behest of governmental officials or via
government processes such as criminal prosecutions.

The immediate legal remedy sought by most persons who believe that they have been unjustifiably
detained by government officials is to obtain not damages, but release. English common law long
provided means for individuals being held by executive branch officials to apply to the courts for
their release. One particularly important device for doing so has been the writ of habeas corpus,
whereby a prisoner can ask a judge to order the relevant officials to “produce the body,” that is,
appear with the prisoner before the court to justify the detention. Absent justification, the judge
could order that the prisoner to be released.

Prior to the late eighteenth century, the habeas writ was primarily available only to persons who
were being held without judicial proceedings of any kind. By contrast, in modern American law, the
habeas writ, which has been codified in federal statutes, now serves to provide prisoners with the
ability to raise collateral challenges to a criminal conviction obtained in a state court. (The challenge
is a “collateral” challenge because it is not raised by appealing a trial-level conviction to a higher
court, but instead involves the initiation of a separate lawsuit subsequent to and independent of the
original criminal prosecution.) Typically, such a challenge asserts that the prisoner’s conviction or
confinement violates rights accorded to him by the U.S. Constitution, such as the right to effective
assistance of legal counsel or to legal procedures in accordance with due process of law.

3. Civil Rights Laws and False Imprisonment. Apart from obtaining release, a person wrongfully
subject to official detention can also sue for damages. Here, she can rely not only on the common
law tort of false imprisonment but also on federal civil rights laws. The Fourth and Fifth
Amendments to the U.S. Constitution respectively grant individuals the right not to be subjected to
unreasonable seizure by government officials and the right to due process of law. In turn — as
explained in Irvin v. City of Shaker Heights, infra — a federal statute, 42 U.S.C. §1983, empowers

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persons who have suffered violations of these (and other) constitutional rights at the hands of state
and local officials, as well as certain private citizens, to sue them for damages. The Supreme Court
in the Bivens decision, discussed in Chapter 6, authorized similar actions against federal officials
who deprive individuals of their constitutional rights.

p. 749Because these federal remedies tend to provide certain advantages to claimants over
common law actions — for example, successful Section 1983 claimants can recover attorneys’ fees
— suits alleging wrongful detention brought about by state and federal officials such as police
officers tend to be framed primarily as federal law civil rights claims, with common law false
imprisonment claims tacked on as redundancies. See, e.g., Daley v. Harber, 234 F. Supp. 2d 27 (D.
Mass. 2002) (proof that the plaintiff’s unjustified arrest was actionable as a civil rights violation
under Section 1983 is sufficient to establish as a matter of law that defendant also committed the
tort of false imprisonment). When the alleged detention is committed by a private citizen or entity,
such as private hospitals and private security personnel, the claim for wrongful detention may still
be actionable under Section 1983 if the private actor is deemed to have been acting “under color of
law.”*21 Suits complaining of detentions caused by private actors not deemed to be acting under
color of law must invoke state-law claims for false imprisonment (and perhaps other torts such as
battery).

4. What Counts as Confinement? A confinement occurs when the tortfeasor causes the victim to
be within a bounded physical space. Confinement can occur in a relatively small space, such as a
closet, or in large spaces, such as a home. However, certain boundaries may be so broad and
permissive of free movement as to not count as confinement as a matter of law. See Shen v. Leo A.
Daly Co., 222 F.3d 472 (8th Cir. 2000) (applying Arkansas law) (employee who was barred from
leaving Taiwan by the Taiwanese government because of his employer’s willful and unjustified
refusal to file certain papers with the government was not “confined” by the employer’s
misconduct). Likewise, conduct that bars a person from traveling along a particular route, or to a
particular destination, will not, absent special circumstances, count as confinement. Smith v.
Comair, Inc., 134 F.3d 254 (4th Cir. 1998) (applying Kentucky law) (airline’s refusal to allow a
connecting passenger to board any flights other than a flight that would return him to the city from
which he initially flew does not constitute confinement); Lloyd v. Jefferson, 53 F. Supp. 2d 643 (D.
Del. 1999) (applying Delaware law) (no confinement when daughter, who sought to accompany her
father as he was being brought into a private entrance of a police station, was barred by an officer
from using that entrance and told instead to use a public entrance). Confinement can occur in a
non-stationary space. See Wilson v. Houston Funeral Home, 50 Cal. Rptr. 2d 169 (Ct. App. 1996)
(confinement occurred when deceased’s relatives were, against their wishes, driven by a funeral
home employee in a company limousine to a bank rather than to the burial site).

The paradigmatic instance of confinement is being placed within a space, such as a jail cell, that
renders exit physically impossible. However, confinement can occur even absent the impossibility
of departure. If an exit is available to the victim but can only p. 750be used by the victim in a
manner that poses a significant risk of physical harm to himself or others, the victim is deemed
confined. Likewise, if the victim reasonably perceives that the tortfeasor will seek to prevent her
from leaving, she is also confined. See Ball v. Wal-Mart, Inc., 102 F. Supp. 2d 44 (D. Mass. 2000)
(applying Massachusetts law) (shopper who reasonably believed that the defendant store owner
would take steps physically to prevent her from leaving was confined). Other forms of pressure can
constitute confinement even if the plaintiff is literally free to move. For example, a threat to detain

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plaintiff’s children or to seize plaintiff’s property if plaintiff were to leave can suffice. See National
Bond & Inv. Co. v. Whithorn, 123 S.W.2d 263 (Ky. App. 1938) (threat by the defendant to seize the
plaintiff’s automobile deemed to generate confinement). Lesser constraints on exit, including risk of
loss of reputation or embarrassment, may also be sufficient. Jacques v. Childs Dining Hall Co., 138
N.E. 843 (Mass. 1923) (customer who was openly accused by waiter of trying to leave without
paying her bill was “confined” for the period it took to establish that the accusation was unfounded;
in light of the public accusation, the customer’s leaving could have been viewed by other diners as
an admission of guilt).

By contrast, if the victim can exit with only minimal inconvenience, or if there is no reason to
suppose that his effort to exit will be met with resistance, there is no confinement. See Caswell v.
BJ’s Wholesale Co., 5 F. Supp. 2d 312 (E.D. Pa. 1998) (customer who was brought to an office in a
store was not confined, even though a store manager stood in the doorway, because there was
nothing in the circumstances to suggest that the manager would block her departure). Also, threats
of certain consequences not pertaining directly to the confinement, such as subsequent dismissal
from employment or prosecution, are often deemed insufficient to establish confinement. See Foley
v. Polaroid Corp., 508 N.E.2d 72 (Mass. 1987) (an at-will employee is not confined in an office
simply because he was concerned that, if he left, he would be fired).

5. Awareness of Confinement. Section 35 of the Second Restatement and several state high
court decisions require the plaintiff to prove that she was aware of her confinement as it happened.
These authorities treat false imprisonment in one respect like assault, that is, as requiring
apprehension of the condition of being confined. So, if an adult victim sleeps for the duration of the
confinement, or an infant is too young to appreciate that she is being confined, there will be no
basis for a false imprisonment claim. See Sager v. Rochester Gen. Hosp., 647 N.Y.S.2d 408
(Super. Ct. 1996) (suit on behalf of a five-month-old infant for false imprisonment cannot prevail
absent proof that she was conscious of her confinement). Other authorities have questioned the
requirement of awareness or apprehension. See Scofield v. Critical Air Medicine, Inc., 52 Cal. Rptr.
2d 915 (Cal. App. 1996) (criticizing the contemporaneous awareness requirement in part on the
ground that it would bar recovery by persons who only later learn that their confinement was
unlawful).

6. Willful Versus Accidental Confinement. To prevail on a claim of false imprisonment, the victim
must prove by a preponderance of the evidence that the tortfeasor acted for the purpose of causing
her to be confined or with knowledge that she would be confined. Green v. Donroe, 440 A.2d 973
(Conn. 1982) (noting these two liability standards, albeit describing the latter as “extreme
recklessness”); Stewart v. Williams, p. 751255 S.E.2d 699 (Ga. 1979) (false imprisonment is an
“intentional” tort). Accidental confinements, such as confinements arising out of misunderstandings,
are ordinarily not actionable as false imprisonments. But see Ortiz v. Hampden County, 449 N.E.2d
1227 (Mass. App. 1983) (rejecting government’s motion to dismiss a claim for negligence brought
by a plaintiff who was arrested and imprisoned allegedly because a county employee carelessly
and mistakenly wrote plaintiff’s name on an arrest warrant). If the confinement results in harm such
as bodily injury, the person who causes the confinement may be liable in negligence. So, for
example, if A were carelessly to cause B to be trapped in a small, unventilated shed that became
so hot as to cause B to suffer heatstroke before being freed, B may have a negligence claim
against A.

The Wisconsin Supreme Court has permitted an action for negligent confinement resulting in
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emotional distress unaccompanied by physical injury. See La Fleur v. Mosher, 325 N.W.2d 314
(Wis. 1982) (police officer who took custody of a physically ill teenager for the purpose of returning
her to her parent’s home, but then forgetfully left her in a locked area of the police station overnight
without food, water, or blankets can be held liable for negligent infliction of emotional distress). But
cf. Garrett v. City of New Berlin, 362 N.W.2d 137 (Wis. 1985) (emphasizing that La Fleur was a
“narrow” decision, grounded in the special situation of a police officer taking custody of an
essentially helpless minor). The California Supreme Court has held that a plaintiff may recover in
negligence from a bank that failed to honor a check written out by the plaintiff, which in turn caused
the plaintiff’s arrest at the behest of the merchant to whom the bounced check was paid. Although
the complaint alleged that the arrest had resulted in physical harm, the court seems to have treated
the causation of confinement as sufficient to support a claim in negligence, at least given the
preexisting relationship of bank and customer. Weaver v. Bank of America Natl. Trust & Sav. Assn.,
380 P.2d 644 (Cal. 1963). Harms associated with bank failures to honor checks are today governed
by a provision in Article 4 of the Uniform Commercial Code.

7. Causing Confinement: Malicious Prosecution and Abuse of Process. Confinement can be

achieved indirectly, by arranging for others to confine the victim. Thus, if a tortfeasor causes a
victim to be detained by officials while knowing that there is no basis for such confinement, he can
be sued for false imprisonment.

Malicious prosecution and abuse of process are two closely related causes of action. The former
sometimes permits a claim by a victim who is subjected to an unfounded criminal prosecution
against the person(s) who instigated the prosecution. In contrast to false imprisonment claimants, a
person suing for malicious prosecution need not establish that she was confined. To recover, the
victim must establish, first, that the instigator acted (a) without probable cause to believe that the
victim had engaged in the reported misconduct and (b) with malice or ill-will toward the victim.
Second, she must prove that, but for the instigator’s activities, the prosecution would not have gone
forward. Finally, she must establish that the prosecution terminated in a manner that establishes or
supports the conclusion that she did not engage in the alleged misconduct. Dan B. Dobbs, et al.,
The Law of Torts §430, at 1215 (2000) (listing elements of malicious prosecution). Thus, a store
owner who, out of personal hostility toward the plaintiff, falsely informs police that the plaintiff has
stolen goods from his store and p. 752thereby subjects the plaintiff to prosecution for shoplifting
can be held liable to the victim for malicious prosecution. Mere carelessness in falsely instigating a
prosecution ordinarily is not sufficient. Prosecutors themselves, as opposed to instigators of those
prosecutions, are generally granted immunity from any tort liability for prosecutions that turn out to
be unfounded.

Although the label “malicious prosecution” tends to be reserved for instigations of criminal
proceedings against another, comparable causes of action exist for malicious instigation of civil
litigation. Actions such as these are sometimes referred to such as malicious use of process or
wrongful litigation. Dobbs, supra, §436, at 1228. The separate tort of abuse of process applies to a
particular subset of malicious prosecutions and wrongful litigation in which one person invokes the
legal system for the particular purpose of extorting, threatening, or harassing the victim, rather than
in a good-faith effort to vindicate some interest or right of hers. For example, a person who
knowingly launches an utterly unfounded tort suit against another merely to coerce the other into
paying her has committed the tort of abuse of process.

8. Damages. Courts sometimes award nominal damages out of recognition of the violation of a
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wrongfully confined plaintiff’s rights independently of any harm suffered, while harms parasitic on
the rights violation — bodily injury, lost wages and expenses, loss of reputation, and emotional
distress associated with the confinement — are generally compensable. See Banks v. Fritsch, 39
S.W.3d 474 (Ky. App. 2001) (perennially absent student who was chained to a tree by a teacher
partly in jest is entitled to recover nominal damages for the dignitary harm as well as compensatory
damages for subsequent emotional distress). Punitive damages may also be awarded upon the
requisite showing of malice or reckless indifference. See, e.g., Edwards v. Stills, 984 S.W.2d 366
(Ark. 1998) (upholding $1.5 million punitive award in suit for false imprisonment and other torts
brought by an attorney whose client abducted, bound, and threatened to kill him).

B. Defenses Available in Cases of Detention and Arrest

There are numerous defenses to the tort of false imprisonment, and they often overlap with those
available to private individuals and officials who are sued for battery and assault arising from
detentions. Indeed, the defenses of consent, self-defense, and defense of property may all be
asserted, at least on some occasions, to defend against a claim of false imprisonment. The
defense of investigative detention and arrest may also be asserted to defend against claims of
assault or battery.

An arrest is a particular kind of detention, one in which a person is held for the purpose of securing
his presence at a judicial proceeding or to otherwise aid in the administration of the law. See
Restatement (Third) of Torts: Intentional Torts to Persons §35, cmts. d & e (Tent. Draft No. 5, April
15, 2020). In various circumstances, an actor who arrests another will be privileged against tort
liability that he might otherwise incur by virtue of having purposefully and forcibly detained another.
The privilege arises not out of a right to defend oneself, others, or property but instead to enable
officials and private citizens to advance the cause of law enforcement and the operation of the legal
system.p. 753

GRANT v. STOP-N-GO MARKET OF TEXAS, INC.

994 S.W.2d 867 (Tex. Ct. App. 1999)

O’Connor, J. Gerald Grant, the appellant, sued Stop-N-Go Market of Texas, Inc., the appellee, for
false imprisonment and defamation. The trial court granted summary judgment in favor of Stop-N-
Go. We reverse and remand . . . .

B. False Imprisonment

. . . The elements of false imprisonment are (1) a willful detention, (2) without consent, and (3)
without authority of law. [Randall’s Food Mkts., Inc. v. Johnson, 891 S.W.2d 640, 644-645 (Tex.
1995).] Stop-N-Go argues it negated the first two elements of Grant’s claim because it established
Grant was not wilfully detained without his consent. Stop-N-Go argues Grant chose to remain in the
store, and he could have left if he so desired. In the alternative, Stop-N-Go argues it negated the
third element of a false imprisonment claim because its actions were authorized by law under
Chapter 124 of the Civil Practice and Remedies Code.

1. The Summary Judgment Evidence

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As evidence to support its motion, Stop-N-Go presented the trial court with an affidavit from Gerald
Calhoun, the store manager, and excerpts from Grant’s deposition. Grant responded to Stop-N-
Go’s motion for summary judgment with excerpts from his deposition, Stop-N-Go’s responses to
interrogatories, the police report, and Stop-N-Go’s response to a request for production . . . .

a. Grant’s Deposition Testimony

In his deposition, Grant said he went to the Stop-N-Go store with his girlfriend. His girlfriend stayed
in the car, which was parked in front of the door to the store. Grant paid for a can of beer, and then
decided he wanted to buy some potato chips. He left the bag with the can of beer on the counter,
and picked out two bags of potato chips which were marked on sale, two for 99 cents. Grant
returned to the clerk and laid both bags of potato chips on the counter along with a one dollar bill.

The store clerk rang up the chips at 69 cents each. Grant told the clerk that the chips were on sale.
The store clerk said something to Grant, but Grant did not understand what was said because the
clerk spoke with a heavy foreign accent. The store clerk and Grant went back to the chip display.
The clerk told Grant that the chips he selected were not on sale, but that another brand was on
sale. Although Grant thought the clerk was wrong, he decided to buy the brand that the clerk said
was on sale because he was in a hurry.

As the clerk began to total the price for the two bags of chips, Grant noticed someone leaning
through the window of his car and apparently talking to his girlfriend. The appellant became
concerned for his girlfriend because he did not recognize the person. He went to the door to make
sure she was alright. As Grant walked to the door, he picked up the one dollar bill which he had
previously laid on the counter. Grant opened the door to the store with his right hand and held the
dollar bill in his left hand. After determining that the person leaning on his car was an acquaintance,
Grant p. 754returned to the counter, paid for the two bags of chips, and began to walk out of the
store. As he walked away from the counter, Grant told the clerk that he (the clerk) needed to learn
his job better, a reference to the verbal altercation concerning the price of the chips.

Just as Grant reached the door, the store manager, Calhoun, came from the back of the store,
grabbed him by the arm, and said words to the effect, “he (the clerk) is doing his job well, let’s talk
about the cigarettes that you stole.” Grant said he was pulled back when Calhoun grabbed his arm.
When Calhoun made the accusation against Grant, his voice was loud enough that all the patrons
in the store heard what he was saying. Calhoun said words to the effect, “everything was on a
surveillance videotape and there is nothing to talk about.”

Grant said Calhoun went behind the counter and asked the store clerk three times what it was that
Grant had stolen. The clerk did not respond until Calhoun asked if a pack of cigarettes was on the
counter, to which the clerk responded affirmatively. Calhoun repeated his accusation that Grant
stole a pack of cigarettes and passed them through the door.

Grant tried to explain to Calhoun that he did not steal any cigarettes. Grant said Calhoun told him to
shut up. Grant said he got real quiet after Calhoun told him to shut up because he was afraid. After
Calhoun grabbed him and accused him of stealing, Grant felt he could not leave. He thought if he
did leave, the police would come looking for him.

b. Calhoun’s Affidavit

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In his affidavit, Calhoun said he was in the back room of the store where a monitor for the store’s
surveillance camera was located. On the monitor, he saw Grant pick up something from the counter
which appeared to him to be a pack of cigarettes. Calhoun said Grant went to the door and stepped
at least part way outside, while still holding the object in his hand. Calhoun said a car was parked
directly in front of the door to the store. He then saw Grant return to the counter and complete his
purchase. However, Calhoun did not see Grant return the item that he picked up from the counter.

Calhoun said he left the back room and approached Grant as he was leaving the store because,
after watching the monitor, he believed Grant had passed a pack of cigarettes out the door. He put
his hand on Grant’s arm to get his attention, and then he asked Grant about the cigarettes he
thought were stolen. Calhoun said his hand was only on Grant’s arm for a few seconds because,
as soon as Grant turned around, Calhoun quit touching his arm.

According to Calhoun’s affidavit, Grant denied stealing any cigarettes. Calhoun thought Grant’s
attitude was hostile and somewhat threatening, and so he decided to call the police to investigate
the matter. He said he feared a confrontation with Grant. Calhoun said that when he told Grant he
was going to call the police, Grant responded by saying to go ahead and call the police.

The police arrived within 15 to 20 minutes. Calhoun said Grant and the officer viewed the
surveillance video. He said Grant told the officer he had picked up a dollar before stepping out the
door. Calhoun told the officer he thought the object p. 755Grant picked up looked like a pack of
cigarettes. According to Calhoun, the officer said he would take Grant in, but Calhoun never asked
or directed the officer to do so. Calhoun gave the officer the surveillance video, and then the officer
left the store with Grant.

Calhoun said he had no physical contact with Grant other than the initial touching to get Grant’s
attention. Once he got his attention, Calhoun said he and Grant remained on opposite sides of the
counter while they waited for the police. Calhoun said a woman, perhaps Grant’s girlfriend, came
into the store and waited with Grant. Calhoun said nobody threatened Grant, nobody told Grant he
could not leave, nobody prevented Grant from leaving, and nobody told Grant he was under arrest.
According to Calhoun, Grant had a clear path to the door, nothing prevented Grant from leaving the
store, Grant was never directed to remain in the store, and Grant was not put in or asked to go to a
back room.

c. The Surveillance Videotape

Grant claims the surveillance videotape is the best evidence to determine the reasonableness of
Calhoun’s belief that he stole cigarettes and of Calhoun’s actions. However, Stop-N-Go did not
produce it. Grant presented the trial court with the police report and Stop-N-Go’s responses to
discovery requests, which all address the location of the videotape.

The police report and the discovery requests are all inconsistent. The police report states the
videotape was returned to Stop-N-Go. In a response to interrogatories, Stop-N-Go said the
videotape was at the corporate office of the Risk Management Department of National
Convenience Stores. However, in a response to a request to produce the surveillance videotape,
Stop-N-Go said, “none.” During oral argument before this Court, Stop-N-Go said the tape was
lost.1

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d. The Police Report

In the police report, Officer Anderson said when he walked into the Stop-N-Go store, Calhoun and
Grant were arguing. Calhoun told the officer Grant stole a pack of cigarettes, and that it would be
on the surveillance video. Anderson said he took Grant to the station to view the videotape. After
reviewing the tape with Sergeant Hartley, Anderson determined the allegations against Grant were
unfounded and released him. Anderson said the videotape was returned to Stop-N-Go.

2. Willful Detention Without Consent

Stop-N-Go relies on Morales v. Lee, 668 S.W.2d 867, 869 (Tex. App. — San Antonio 1984, no writ),
to argue that Grant was not willfully detained without his consent as a p. 756matter of law.2 It
argues Grant was not detained because he was not restrained from moving from one place to
another . . . .

. . . According to Grant, Calhoun told Grant he could not leave and that he (Calhoun) was calling
the police. This contradicts Calhoun’s affidavit, in which Calhoun said he did not tell Grant that he
could not leave. This raises a genuine issue of material fact concerning whether Grant was
detained, and whether he consented to stay in the store.

Stop-N-Go also argues that threats of future actions, such as to call the police, are not sufficient to
constitute false imprisonment. However, Calhoun did more than threaten to call the police; he
actually called the police. Grant said he was afraid of what was going to happen; he had never
been in trouble with the police before. He was afraid to try and leave the store because Calhoun
had already grabbed him and told him not to leave. Compare Johnson, 891 S.W.2d at 645 (finding
no detention of employee based on fear of what would happen because no one tried to stop her
from leaving, no one guarded her, and she was not threatened). Grant was afraid that if he left, he
would be labeled a fugitive from justice, causing even more damage to his reputation.

Under Johnson, when we assume these facts are true, we conclude Grant raised fact issues
concerning whether he was willfully detained without his consent.

3. The Shopkeeper’s Privilege

In its motion for summary judgment, Stop-N-Go claimed its actions were authorized by law under
Civil Practice and Remedies Code section 124.001, the shopkeeper’s privilege. If this is true, then
Stop-N-Go would have negated the third element of Grant’s false imprisonment claim. Grant
argues he raised genuine issues of material fact regarding whether Stop-N-Go established this
privilege as a matter of law.

Stop-N-Go’s only summary judgment evidence was from an interested witness, Calhoun. Calhoun’s
affidavit explains what Calhoun saw on the surveillance monitor. The videotape is the best
evidence of what happened. However, Stop-N-Go has refused to produce the videotape, and each
time Stop-N-Go was asked for it, it gave a different reason why it could not be produced.

The shopkeeper’s privilege provides that a person who reasonably believes another person has
stolen, or is attempting to steal property, is privileged to detain that person in a reasonable manner
and for a reasonable time to investigate ownership of the property. Tex. Civ. Prac. & Rem. Code

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§124.001; Wal-Mart v. Resendez, 962 S.W.2d 539, 540 (Tex. 1998). Thus, there are three
components to the shopkeeper’s privilege: (1) a reasonable belief a person has stolen or is
attempting to steal; (2) detention for a reasonable time; and (3) detention in a reasonable manner.
Id. at 540.

p. 757Like the court in Wal-Mart Stores, Inc. v. Odem, 929 S.W.2d 513, 520 (Tex. App. — San
Antonio 1996, writ denied), we are concerned with a false imprisonment arising out of a detention.
Odem explained that the shopkeeper’s privilege is limited in its application to false imprisonment
claims arising from investigative detentions. The test of liability is not based on the store patron’s
guilt or innocence, but instead on the reasonableness of the store’s action under the
circumstances; the trier of fact usually determines whether reasonable belief is established.
Whether Calhoun was reasonable in believing Grant had committed a theft, or reasonable in
detaining Grant, is a question to be determined by the jury.

Stop-N-Go relies on Resendez to argue that a ten to 15 minute detention is reasonable as a matter
of law. This is a true statement of the law in Resendez. See 962 S.W.2d at 540. While Resendez
held a ten to 15 minute detention was reasonable as a matter of law, it so held, “without deciding
the outer parameters of a permissible period of time under section 124.001.” Id. (emphasis added).

Resendez does not support Stop-N-Go’s position, because Grant was detained for more than ten
to 15 minutes. According to Calhoun, the police arrived 15 to 20 minutes after they were called.
Once the police arrived, they viewed the tape at the store, and then they took Grant to the police
station and viewed the tape again. Grant said he spent approximately an hour in police custody.
Thus, Grant’s detention lasted for more than an hour and 20 minutes.

4. Conclusion

Stop-N-Go did not negate any element of Grant’s false imprisonment claim as a matter of law, and
Grant raised genuine issues of material fact on each element. Therefore, summary judgment on
this claim was improper.

[The court next denied summary judgment for the defendant on Grant’s defamation claim. It
concluded that a jury could find that Calhoun defamed Grant by stating in front of other customers
that the store had videotaped Grant stealing cigarettes.]

NOTES AND QUESTIONS

1. Investigative Detentions and the Shopkeeper’s Privilege. The U.S. Supreme Court held in
Terry v. Ohio, 392 U.S. 1 (1968), that the Fourth Amendment permits police officers briefly to detain
persons for the purpose of investigating actual or possible criminal activity. Such investigative stops
do not require probable cause to believe that the person has committed a crime, but instead the
lower threshold of “reasonable suspicion.” Merchants historically enjoyed a much more limited
privilege to detain customers to investigate possible thefts. Specifically, they were privileged to
detain actual shoplifters, but they exercised that privilege “at their peril,” meaning that the privilege
would not apply if it turned out that they were mistaken, even if their mistake was a reasonable one.
See Claggett v. State, 670 A.2d 1002 (Md. App. 1995) (reviewing Maryland common law with
respect to the privilege to detain a suspected thief, and noting that any such detention is at the

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shopkeeper’s peril), cert. denied, 675 A.2d 992 (Md. 1996).

Through common law development and, more typically, legislation of the sort referenced in Grant,
merchants have been granted the privilege to detain customers p. 758believed to have committed
or attempted a theft of their property, even if it turns out that the suspect is innocent. These statutes
require that store personnel have probable cause or reasonable grounds for believing that the
customer has stolen or is about to steal store property. If they have such grounds, they may detain
the suspect, but only for a reasonable period of time and in a reasonable manner. See Restatement
(Third) of Torts: Intentional Torts to Persons §37 (Tent. Draft No. 5, April 15, 2020). In a decision
subsequent to Grant, another Texas appellate court held that detention of a suspected shoplifter for
the period of an hour did not constitute an unreasonably long detention. Dillard Dept. Stores, Inc. v.
Silva, 106 S.W.3d 789 (Tex. App. 2003). However, the court in the same case also ruled that a jury
was entitled to find that the store had executed the detention in an unreasonable manner because,
among other things, its security guard twice placed the suspect on the floor, handcuffed him before
taking him to an office, ridiculed him while in custody, and never entertained the victim’s request to
go out to his car in the parking lot, in which receipts for the allegedly stolen property could be
found. See Restatement (Third) of Torts: Intentional Torts to Persons §37 cmt. h (reasonable
manner) and cmt. i (reasonable time) (Tent. Draft No. 5, April 15, 2020).

2. Anti-Shoplifting Measures, Discrimination, and Privacy. Federal civil rights laws guarantee
all persons the right to “make and enforce contracts.” 42 U.S.C. §1981. In certain circumstances,
courts have interpreted Section 1981 to provide customers or prospective customers with a federal-
law remedy against owners and operators of businesses who refuse to serve them, or otherwise
discriminate against them, on the basis of race or national origin. Some of these suits have claimed
that store detention policies are discriminatory in that they disproportionately target African
Americans and members of other minority groups for investigation and detention. See, e.g.,
Hampton v. Dillard Dept. Stores, Inc., 247 F.3d 1091 (10th Cir. 2001), cert. denied, 534 U.S. 1131
(2002).

Because shoplifting apparently causes the average retail business substantial losses, storeowners
have increasingly relied on technology, including hidden surveillance cameras, to guard against
theft. These technologies can implicate other interests protected by the law of torts, including the
interest in privacy. For example, the issue has arisen as to whether, or under what circumstances, a
clothing store can be held liable for secretly videotaping or observing its customers in changing
areas. See generally Annotation: Retailer’s Surveillance of Dressing or Fitting Rooms as Invasion
of Privacy, 38 A.L.R. 4th 954 (1985).

3. Examples of Reasonable Force. For a decision upholding a store security guard’s use of non-
deadly force to apprehend a suspected shoplifter, see Watkins v. Sears Roebuck & Co., 735
N.Y.S.2d 75 (App. Div. 2001) (guard who broke suspect’s leg in tackling him as he fled store with
stereo used reasonable force as a matter of law). As to the justified use of deadly force, see Edson
v. City of Anaheim, 74 Cal. Rptr. 2d 614 (Ct. App. 1998) (upholding a jury’s defense verdict on
behalf of a police officer: The officer shot a suspect who had led police on a lengthy chase and
who, at the end of the chase, had turned toward the officer and reached under his jacket and
toward his waistband, leading the officer to believe that the suspect was reaching for a gun).

p. 759

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IRVIN v. CITY OF SHAKER HEIGHTS

809 F. Supp. 2d 719 (N.D. Ohio 2011)

Oliver, Jr., J. The following Motions are currently pending . . . between Plaintiff Rodney Irvin
(“Plaintiff” or “Irvin”) and Defendants City of Shaker Heights (“City Defendant”), Mayor of Shaker
Heights Rawson, former Chief of Police Ugrinic, Assistant Chief of Police (now Chief) Lee, and
police officers Sgt. Mastnardo, Det. Carlozzi, Ptl. Emlaw, Cpl. Pizon, Sgt. Allison, Ptl. McCandless,
and Cpl. Gozelanczyk: (1) Sgt. Mastnardo’s Motion for Summary Judgment . . . ; (2) the other
above-named officers’ (“Individual Officers”) Motion for Summary Judgment; and (3) the City of
Shaker Heights, the Mayor, Police Chief, and Assistant Police Chief’s Motion for Summary
Judgment.

For the following reasons, the court hereby grants in part and denies in part Sgt. Mastnardo’s
Motion for Summary Judgment; grants in part and denies in part the Individual Officers’ Motion for
Summary Judgment, and grants in full the City, the Mayor, and the current and former Chiefs of
Police’s Motion for Summary Judgment.

I. Facts and Procedural History

On July 27, 2005, at approximately 10:30 p.m., Plaintiff Rodney Irvin was walking home, pushing
his two-year-old daughter in a tricycle, near E. 154th Street and Kinsman Avenue in Cleveland,
Ohio. Irvin saw his former brother-in law, Bob Nance (“Nance”), in a passing vehicle and began a
conversation. Nance handed Irvin his business card. Aware of the police car behind Nance, Irvin
suggested that he pull off the main street and onto 154th Street; Nance did so and the two resumed
their conversation. Defendant Mastnardo, a corporal at the time, was driving that police car
accompanied by his canine partner. He turned as well and drove past Irvin and Nance, and then
made a U-turn. He maintains that as he approached, he saw a hand-to-hand transaction between
the two men. According to Mastnardo, he believed Nance and Irvin were engaged in a drug
transaction. He parked on the other side of 154th, told the dispatcher he was making a traffic stop,
and got out of his car.

Accounts differ as to whether Mastnardo took his gun from its holster and released his dog on
initially leaving the car. Irvin maintains that Mastnardo approached Nance’s car initially with his gun
drawn and that the dog left the police car at the same time. Nance stated right after the incident
that the gun was not initially drawn, but at Irvin’s criminal trial he testified that the gun was out as
Mastnardo crossed 154th Street from his patrol car. Mastnardo maintains, however, that he did not
draw his gun until he reached the front of Nance’s car, just a few feet from Irvin, after he
determined that Irvin was not complying with his instructions and might pose a threat. He states
that he released the dog from his vehicle by remote control later in the interaction. Mastnardo told
Nance to place his hands on the steering wheel, and Nance complied.

The specifics of the interaction between Mastnardo and Irvin are also in dispute. Irvin says he
forcefully questioned Cpl. Mastnardo’s actions in pulling his weapon and allowing his police dog
twice to approach Irvin’s daughter. Irvin alleges, with support from Nance’s testimony, that
Mastnardo told him he was under arrest before there was any physical contact. Mastnardo
maintains, with support from Nance’s testimony, that p. 760Irvin was uncooperative and
argumentative. The parties disagree about whether Irvin’s hand was in his pocket at any point.
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A physical altercation ensued. Mastnardo asserts that he sharply pushed Irvin in the chest in order
to secure Irvin’s cooperation in removing his hand from his pocket as instructed. He says that Irvin
then struck him in the shoulder and neck area. Mastnardo says he disengaged to call for faster
backup, reholstered his weapon, and only then summoned his police dog for assistance. According
to Mastnardo, Irvin then pushed the tricycle into him, tried to punch him, and the two men grappled
as the tricycle, with Irvin’s daughter strapped into it, fell to the side. Mastnardo asserts that the dog
bit Irvin in accordance with its training, in order to protect the officer, and that Irvin repeatedly beat
the dog’s head against the ground, causing a broken tooth and other injury. Mastnardo asserts that
the several efforts to subdue Irvin, using precisely aimed strikes to the body and a sleeper hold,
had only marginal success.

Irvin alleges that Mastnardo hit him in the chest, that the two men never “tussled,” and that he
never struck Mastnardo. Irvin states that he was attacked and bitten by the police dog. Irvin
describes a tug-of-war with the dog as he tried to prevent the dog from biting him, and he maintains
that Mastnardo struck him in the head from behind, knocking him on top of the dog. Irvin states that
he was never put in a sleeper hold.

Irvin alleges that several other officers, beginning with Defendants Emlaw and Pizon, arrived at the
scene and began “hitting, kicking, and stomping him.” He remembers being assaulted by Det.
Carlozzi, who also allegedly dismissed his expression of concern about his daughter with the words
“fuck her.” He remembers Sgt. Allison being at the scene but alleges no specific actions by him. He
is not certain but believes Ptl. McCandless and Cpl. Gozelanczyk were involved in the alleged
beating as well. Irvin acknowledges that he continued to struggle with all the officers while
attempting to reach his daughter.

All the backup officers describe an intense struggle to subdue Irvin. Cpl. Gozelanczyk says that he
was the first one to arrive and that at that point Irvin was still on his feet struggling with Mastnardo.
Sgt. Allison says he joined Gozelanczyk and Cpl. Pizon in grappling with Irvin. Ptl. McCandless
avers that he did not have contact with Plaintiff and instead tended to Irvin’s daughter in the tricycle.
Ptl. Emlaw also avers that he had no contact with Plaintiff and was tasked with searching Nance’s
vehicle.

Irvin states that after being arrested, he asked for medical help for his bite wounds and bruises on
several occasions over the next few days, but received no real attention, except some aspirin, until
several days later at the county jail. In contrast, Gozelanczyk avers that he asked Irvin if he needed
medical assistance, but Irvin declined. The county doctor, a week later, told Irvin that since the
wounds were not infected, they would heal without incident. Irvin maintains that the bite wound in
his chest became a keloid and still itches on occasion. Mastnardo, meanwhile, had injuries after the
struggle that led to his not being cleared to return to full duty until early February 2006.

Irvin was charged with felonious assault on a police officer, assault on a police dog, and child
endangerment. His Indictment was later amended to include two additional felonies. He was unable
to post bond and was imprisoned from July 2005 until p. 761February 2006. On February 6, 2006,
a jury found Irvin not guilty on all felony charges; after a nolo contendere plea, he was found guilty
of a misdemeanor count of child endangerment.

One piece of evidence available for the criminal trial was a compact disc containing surveillance
footage from the front of a public works building in Shaker Heights. Officers say it showed Irvin[ ],

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Nance, and Mastnardo approaching the scene of the incident but, because of its orientation, could
not have captured any of the actual encounter. Testimony and physical evidence about the
orientation of the camera and the location of the incident corroborate this assertion. Sometime
between Irvin’s trial and discovery in this action, the CD disappeared from the case file and could
not be located. After a hearing on March 16, 2011, the court determined that its disappearance
does not harm Plaintiff’s case and declined to issue sanctions against Defendants.

An anonymous letter making reference to the video footage was received in the Shaker Heights
Law Department at some point during the pendency of this case. Purporting to be from a member
of the Police Department, the letter charged that the footage contradicted some of Mastnardo’s
testimony and was being covered up. The Chief and Assistant Chief met with officers and asked
them to review the case and report back any concern, but there was no direct investigation of the
letter’s charges. According to one of the officers present, Chief Ugrinic said in the meeting that he
was “not going to get into the habit of investigating rumor and innuendo.”

As a result of the events leading up to his arrest and jury trial, Plaintiff filed a Complaint in this court
on July 24, 2006. Irvin claims that Defendants violated his Fourth, Fifth, Eighth, and Fourteenth
Amendment rights. He brings his claims pursuant to 42 U.S.C. §§1983, 1985, and 1988, and under
state law.

Count I of Plaintiff’s Complaint is for “Wrongful Search and Seizure; Excessive Use of Force in
violation of rights and privileges secured by 4th and 14th Amendments and 42 USCA Sec. 1983.”
Count II is for “8th Amendment Violation: Refusal of Medical Treatment.” Count III is for “Assault
and Battery [a]nd Intentional Infliction of Emotional Distress.” Count IV is for “False Arrest.” . . .
Count VI is for “Malicious Criminal Prosecution.” Count VII is for “Conspiracy.” Count Eight is for
“Negligent Supervision” and claims that the City of Shaker Heights “failed or neglected to
supervise, direct or control officers in the commission of the unlawful conduct against the Plaintiff.”
Count IX is for “Punitive Damages.”

II. Legal Standard

...

B. Qualified Immunity

Section 1983 permits actions seeking damages for constitutional violations committed by persons
acting under color of state law. 42 U.S.C. §1983. Qualified immunity protects an official from liability
if the official’s conduct does not violate “clearly established” statutory or constitutional rights that a
reasonable person would have known were in existence. Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). The Supreme Court has stressed that the “contours of the right must be sufficiently clear
that a reasonable official would understand that what he is doing violates that right.” Anderson v. p.
762Creighton, 483 U.S. 635, 640 (1987). This does not mean that “an official action is protected by
qualified immunity unless the very action in question has previously been held unlawful.” Id. (citing
Mitchell v. Forsyth, 472 U.S. 511, 535 (1985)). Rather, it means that, “in light of pre-existing law the
unlawfulness must be apparent.” Anderson, 483 U.S. at 640 . . . .

A defendant bears the initial burden of putting forth facts that suggest that he was acting within the
scope of his discretionary authority. Rich v. City of Mayfield Heights, 955 F.2d 1092, 1095 (6th

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Cir.1992). However, the plaintiff bears the ultimate burden of proof to show that the defendants are
not entitled to qualified immunity. Wegener v. Covington, 933 F.2d 390, 392 (6th Cir.1991). “[T]he
burden is on the plaintiff to allege and prove that the defendant violated a clearly established
constitutional right.” Spurlock v. Satterfield, 167 F.3d 995, 1005 (6th Cir.1999).

In Saucier v. Katz, 533 U.S. 194, 201 (2001), the Supreme Court held that, in addressing the issue
of qualified immunity, a court must first determine whether there is a violation of a constitutional
right before addressing the issue of whether the right was clearly established. While this approach
may be appropriate in many cases, it is no longer mandatory. The Supreme Court modified this
approach in Pearson v. Callahan, 555 U.S. 223, 236 (2009). District and circuit court judges are
allowed the freedom to determine which prong of the immunity analysis to address first . . . .

III. Law and Analysis

A. Seizure and Excessive Force: Sergeant Mastnardo

1. Terry Stop

a. Constitutional Violation

Defendant Mastnardo argues that his initial seizure of Irvin and Nance for questioning was justified
pursuant to Terry v. Ohio, 392 U.S. 1 (1968). A stop of a citizen for investigative purposes, based
on a reasonable suspicion of criminal activity, may include a search for weapons to help ensure the
safety of the investigating officer “regardless of whether he has probable cause to arrest the
individual.” Terry, 392 U.S. at 27. Such a search may, in turn, lead to evidence that gives an officer
probable cause to make an arrest.

To evaluate a “Terry stop,” the court considers whether the officer had a reasonable suspicion of
criminal activity and whether he or she conducted the seizure with a reasonable degree of
intrusion. United States v. Davis, 430 F.3d 345, 354 (6th Cir.2005). The “reasonable suspicion”
standard draws on the totality of the circumstances. United States v. Arvizu, 534 U.S. 266, 274
(2002). To make the latter judgment, the court evaluates “whether the degree of intrusion into the
suspect’s personal security was reasonably related in scope to the situation at hand, which is
judged by examining the reasonableness of the officials’ conduct given their suspicions and the
surrounding circumstances.” United States v. Hardnett, 804 F.2d 353, 356 (6th Cir.1986) . . . .

Mastnardo argues that several factors made him suspect that Plaintiff and Nance were engaging in
a drug transaction, including the roadside conversation on a thoroughfare, the high-crime nature of
the neighborhood, the fact that Irvin was wearing p. 763a jacket on a summer evening, and the
lateness of the hour for walking a small child outdoors. Mastnardo’s expert avers that it was
reasonable for Mastnardo to take precautions, since drug dealers are often armed.

...

Mastnardo averred that where Plaintiff and Nance stopped was “in a known, high drug trafficking
area.” Mastnardo also averred that “[s]ignificant drug activity takes place in the area where the
hand-to-hand transaction occurred. In fact, it is one of the most notorious drug trafficking areas in
the greater Cleveland area.” Whether an area is considered to be high-crime is “relevant to the

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reasonable suspicion calculus.” United States v. Caruthers, 458 F.3d 459, 467 (6th Cir.2006) . . . .

Plaintiff admits that he was pushing his daughter in a tricycle that night. He also admits that he was
wearing a jacket. Plaintiff maintains that his only physical contact with Nance was taking his
business card from him, when the car was still on Kinsman directly in front of Mastnardo’s police
car.1 Taking Plaintiff’s version of the facts as true, the question is whether the totality of the
circumstances gave Mastnardo reasonable suspicion to conduct a Terry stop.

When a police officer witnesses a hand-to-hand exchange in an area known for drug transactions,
the officer has reasonable suspicion to believe that criminal activity is afoot.

Given that Mastnardo saw Nance hand something to Irvin late at night in an area known for drug
transactions, this court finds that Mastnardo had reasonable suspicion to conduct a Terry stop.

b. Clearly Established

As the court has found that no constitutional violation occurred, it need not determine whether
Plaintiff’s right was clearly established. Mastnardo is entitled to qualified immunity for making the
initial Terry stop.

2. Arrest

a. Constitutional Violation

Mastnardo does not argue that he had probable cause to make an arrest and instead pursues the
argument that under Terry, he could use force to “dislodge the [P]laintiff’s concealed hand.” Plaintiff
argues, in support of his wrongful seizure claim, that an investigatory stop can ripen into an arrest,
at which point an officer needs probable cause to justify the arrest.

The Court in United States v. Obasa, 15 F.3d 603, 607 (6th Cir.1994) (quoting Berkemer v.
McCarty, 468 U.S. 420, 439–40 (1984)), explained that during an investigatory stop,

the officer may ask the detainee a moderate number of questions to determine his identity and to
try to obtain information confirming or dispelling the officer’s suspicions. p. 764But the detainee is
not obliged to respond. And, unless the detainee’s answers provide the officer with probable cause
to arrest him, he must then be released.

According to Irvin’s account, what began as a Terry stop ripened into an arrest almost immediately.
Irvin has testified that he was told he was under arrest very early in the encounter, while he was
arguing with Mastnardo about the officer’s initial menacing conduct. As Mastnardo has not
presented evidence that he had probable cause to arrest Plaintiff, he is not entitled to qualified
immunity for the arrest.

b. Clearly Established Right

It is clearly-established that an officer cannot arrest a person without probable cause. Dietrich v.
Burrows, 167 F.3d 1007, 1012 (6th Cir.1999) ( “[A]bsent probable cause to believe that an offense
had been committed, was being committed, or was about to be committed, officers may not arrest
an individual.”). Therefore, Mastnardo’s Motion for Summary Judgment on Plaintiff’s wrongful
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seizure claim is denied.

3. Excessive Force

a. Constitutional Violation

The Supreme Court has held that force used in making seizures must be “objectively reasonable in
light of the facts and circumstances confronting” the officer. Graham v. Connor, 490 U.S. 386, 397
(1989). The Court has cautioned that “the ‘reasonableness’ of a particular use of force must be
judged from the perspective of a reasonable officer on the scene, rather than with the 20/20 vision
of hindsight.” Id. Even when an arrestee is resistant, he has a constitutional right to police conduct
that does not “cross the line from subduing an individual to assaulting him.” Lawler v. City of Taylor,
268 Fed. Appx. 384, 387 (6th Cir.2008). Factors to be considered when determining whether use of
force was unreasonable include: “(1) the severity of the crime at issue, (2) the immediacy of the
threat posed by the suspect to the officers or others, and (3) whether the suspect is actively
resisting arrest or attempting to evade arrest by flight.” Williams v. City of Grosse Pointe Park, 496
F.3d 482, 486 (6th Cir.2007) (internal citation omitted).

The physical altercation began when Mastnardo pushed Irvin in the chest. Irvin denies retaliating
and says that a moment later, as he was recovering his balance, he was attacked by the police dog
and bitten in the chest and thigh. He says he fought with the dog to defend himself, and Mastnardo
did not call off the dog’s attack until the arrival of the other officers.

According to Plaintiff, the force used included Mastnardo punching and kneeing Plaintiff,
Mastnardo’s police dog biting Irvin, and Mastnardo hitting Plaintiff in the head with a hard object.
The use of police dogs can be excessive force. White v. Harmon, No. 94–1456, 1995 WL 518865,
at *3 (6th Cir. Aug. 31, 1995) (A canine handler was not entitled to qualified immunity for bringing a
little-trained dog to an arrest scene where the plaintiff had already been handcuffed and for failing
to prevent the dog from biting the plaintiff.); see also McGovern v. Vill. of Oak Law, 2003 WL
139506, at *7 (N.D. Ill. Jan. 17, 2003) (denying summary judgment on the plaintiff’s excessive force
claim where the plaintiff was hiding under a trailer, attempted to p. 765surrender, and then was
bitten by a police dog); Vathekan v. Prince George’s County, 154 F.3d 173, 178 (4th Cir.1998) (“An
attack by an unreasonably deployed police dog in the course of a seizure is a Fourth Amendment
excessive force violation) . . . . Moreover, Irvin alleges that Mastnardo struck him on the head with a
hard object, which in itself can constitute excessive force in the Sixth Circuit. See Davis v. Bergeon,
No. 98-3812, 1999 WL 591448, at *4 (6th Cir. July 27, 1999) (reversing grant of summary judgment
where the plaintiff ignored police instructions and was struck in the head with an asp baton).

Under Irvin’s account of the facts, therefore, the court finds that the level of force Mastnardo used
in securing the arrest amounted to a constitutional violation. The suspected crime of drug activity
was not an intrinsically violent one. Irvin was not an immediate threat with his hands visible and his
daughter in front of him. Although he was argumentative, he was not actively resisting or evading
arrest. Therefore, under Smoak, Mastnardo’s use of force was not justified by the situation.

4. Clearly Established

In cases involving unleashed police dogs, the Sixth Circuit maintains a bright-line rule that an attack
by a dog must be preceded by a warning:

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It was clearly established [by the spring of 2002] that police officers violate the Fourth Amendment’s
protection against excessive force when they dispatch a police dog to find and seize a criminal
suspect without first giving a clear warning such force will be used if the suspect does not
surrender.

Baker v. Snyder, No. 1:03–CV–89, 2004 WL 3367692 (E.D. Tenn. May 11, 2004) . . . . Here, Irvin
avers that he was not refusing to surrender and that he received no warning of the dog’s impending
attack. His right in those circumstances to be free of the alleged level of force was clearly
established. Moreover, the proscription against gratuitous blows to the head is well established in
the Sixth Circuit. Qualified immunity on the claim for excessive force is therefore denied.

In summary, the court holds that Mastnardo is immune from suit on the issue of his initial basis for
an investigative stop of Plaintiff. Qualified immunity is denied, however, on Plaintiff’s claims that his
arrest was illegal and that he was subjected to excessive force.

[With respect to the plaintiff’s remaining §1983 claims, the court ruled as follows. It first held that,
unlike Officer Mastnardo, the “backup” officers had probable cause to arrest Irvin when they arrived
on the scene. Therefore the court granted their motion to dismiss plaintiff’s claim against them for
unconstitutional arrest. However, for reasons similar to those cited by the court in its analysis of
Irvin’s claims against Mastnardo, the court held that a jury could find that the backup officers used
excessive force and therefore denied their motion to dismiss plaintiff’s excessive force claim.
Additionally, the court granted summary judgment to the defendants for the plaintiff’s claims based
on refusal to provide medical treatment, and for malicious prosecution. — Eds.]

. ...

p. 766

E. Conspiracy

....

2. Conspiracy Pursuant to §1985

To succeed on a claim under §1985, Plaintiff must prove that there was “some racial, or perhaps
otherwise class-based invidiously discriminatory animus behind the conspirators’ action.” Kush v.
Rutledge, 460 U.S. 719, 726 (1971).

Mastnardo argues that Plaintiff has not presented any evidence of racial or class-based animus.
Again, the Individual Defendants incorporate Mastnardo’s arguments as their own.

Plaintiff argues that summary judgment should not be granted in Defendants’ favor on Plaintiff’s
claim pursuant to §1985(2) because “Mr. Irvin is an African-[A]merican male that was the victim of a
conspiracy perpetrated by all white defendants. The racial discrimination that he has suffered is
significant and continuing. This racial discrimination is the animus behind the defendants’ action.” In
support of Plaintiff’s conspiracy claim pursuant to §1985(3), Plaintiff argues that Defendant
impaired his access to the courts. Plaintiff admits that he must show that the conspiracy was
motivated by racial or class-based animus.

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Therefore, other than pointing out that Plaintiff is African–American and the Individual Defendants
are white, he provides no evidence in support of his claim. Vague allegations are not enough to
state a valid claim for conspiracy to deny civil rights. In the Sixth Circuit, “it is well-settled that
conspiracy claims must be pled with some degree of specificity.” Gutierrez v. Lynch, 826 F.2d 1534,
1538 (6th Cir.1987) (citing Jaco v. Bloechle, 739 F.2d 239, 245 (6th Cir.1984)). Thus, summary
judgment is granted on the §1985 conspiracy claim.

F. Assault and Battery

Plaintiff brings state tort actions against Mastnardo and the Individual Defendants for assault and
battery and intentional infliction of emotional distress. Individual Defendants have moved for
summary judgment pursuant to the Ohio Political Subdivision Tort Liability Act, Ohio Rev. Code
§2744.01, et seq. This statute immunizes municipal employees from damages actions arising from
their official duties, unless they acted outside the scope of their official responsibilities; behaved
maliciously, in bad faith, wantonly, or recklessly; or are subject to liability by statute. Ohio Rev.
Code §2744.03(A)(6). Plaintiff argues that a reasonable jury could find that they acted recklessly.

In Ohio, whether an officer’s actions were reckless, wanton, or malicious is usually a question for
the finder of fact. See, e.g., Fabrey v. McDonald Village Police Dep’t, 639 N.E.2d 31, 35 (Oh. 1994)
(citing Matkovich v. Penn Cent. Transp. Co., 431 N.E.2d 652, 655 (Oh. 1982)). The standard is a
high one. Fabrey, 639 N.E.2d at 36 (requiring that “the actor must be conscious that his conduct will
in all probability result in injury”); see also Roszman v. Sammett, 269 N.E.2d 420, 423 (Oh. 1971)
(requiring that “the evidence establish[ ] a disposition to perversity on the part of the tortfeasor”).

Viewed in the light most favorable to Plaintiff, the evidence in this case does not rule out possible
findings of recklessness. If Mastnardo knew his initial shove to Irvin’s chest was likely to lead to the
police dog attacking Irvin, a reasonable jury might find p. 767that the contact constituted a battery
that was wanton or reckless. And, if Plaintiff was, as he has claimed, mostly passive under
unrelenting beating and kicking by the Individual Officers, the jury could find their actions to be
reckless assault and battery as well. Summary judgment is therefore denied on the state-law claims
of assault and battery against Sgt. Mastnardo and the other Individual Officers.

G. Intentional Infliction of Emotional Distress

[The court granted summary judgment to the defendants on plaintiff’s IIED claim based on the lack
of evidence that plaintiff suffered severe emotional distress. — Eds.]

H. City Defendants

Plaintiff has brought suit against the city of Shaker Heights and against the Mayor, the Chief of
Police, and the Assistant Chief. Since he is expressly suing the three individuals in their official
capacities, his claims against them are redundant. See Kentucky v. Graham, 473 U.S. 159, 166
(1985) (holding that “an official-capacity suit is, in all respects other than name, to be treated as a
suit against the entity”) (citing Brandon v. Holt, 469 U.S. 464, 471–472 (1985)). In the interest of
efficiency and clarity, therefore, the court dismisses all claims against Mayor Judy Rawson, former
Chief of Police Walter A. Ugrinic, and Chief (formerly Assistant Chief) of Police Scott Lee, since
they are in truth claims against Shaker Heights itself.

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1. State–Law Claims

Plaintiff is not clear in his Complaint whether he is bringing the claims of assault, battery, and
intentional infliction of emotional distress against the City in this case. Possibly as a result of this,
the City does not make an argument in its Motion for Summary Judgment for immunity on state-law
claims. Plaintiff argues in his Opposition Brief that the City’s conduct is not immune from liability
because its acts or omissions were undertaken “maliciously, in bad bath, or in a wanton or reckless
manner.” In the City’s Reply Brief, it argues that it is entitled to immunity pursuant to Ohio Revised
Code §2744. Ohio Revised Code §2744.02(A)(1) states that, “[a] political subdivision is not liable in
damages in a civil action for injury . . . allegedly caused by any act or omission of the political
subdivision or an employee of the political subdivision in connection with a governmental or
proprietary function.” Municipalities are also immune from intentional-tort claims, such as assault,
battery, and intentional infliction of emotional distress. Summary judgment is therefore appropriate
on all state-law claims.

2. Constitutional Claims

Under §1983, a municipality cannot be held liable for the actions of its employees under a theory of
respondeat superior. Monell v. Dep’t. of Soc. Servs., 436 U.S. 658, 690 (1978). Instead, a city could
be liable for the action of its employees if they resulted from official city action, such that the injury
was inflicted by the execution of the city’s “policy or custom, whether made by its lawmakers or by
those whose edicts or acts may fairly be said to represent official policy.” [Id. at 694.] If such a
policy or custom was not the “moving force” of Plaintiff’s harm, however, the city has no liability. [Id.]

p. 768The Supreme Court stated that a proper analysis of municipal liability under §1983 requires
the evaluation of two distinct issues: (1) whether a constitutional violation occurred; and (2) if such
a violation occurred, whether the municipality was responsible for that violation. Collins v. City of
Harker Heights, 503 U.S. 115, 120 (1992). Determining whether the municipality bears
responsibility for a constitutional violation requires proof by the injured party of a “direct causal link
between municipal policy or custom and the alleged constitutional deprivation.” City of Canton v.
Harris, 489 U.S. 378, 385 (1989). To establish such a link plaintiff must “identify the policy, connect
the policy to the city itself, and show that the particular injury was incurred because of the execution
of that policy.” Coogan v. Wixom, 820 F.2d 170, 176 (6th Cir.1987) (abrogated on other grounds). A
municipality may also be held liable under §1983 if a violation of the plaintiff’s constitutional rights
was the result of a failure to train officers of the municipality. Canton, 489 U.S. at 388. Failure to
train can be the basis for §1983 liability only when this failure “amounts to deliberate indifference to
the rights of persons with whom police come into contact.” Id.

[The court held that Irvin could not establish that an unconstitutional policy or custom of the City of
Shaker Heights resulted in his injuries and dismissed all §1983 claims against the City. — Eds.]

...

I. Punitive Damages

Punitive damages can be awarded in §1983 cases only “when the defendant’s conduct is shown to
be motivated by evil motive or intent, or when it involves reckless or callous indifference to the
federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983). Defendants have

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moved for summary judgment on the ground that no such motive or reckless indifference could be
found by a reasonable jury. As discussed above in Section III(F), the court cannot rule out such a
finding as a matter of law; therefore, the motion for summary judgment is denied.

IV. Conclusion

City Defendant’s Motion for Summary Judgment on all counts is well-taken and is granted in full.
Defendant Mastnardo’s Motion for Summary Judgment is granted in part and denied in part. The
claims remaining against Mastnardo are: unreasonable seizure, excessive force, and the state-law
assault and battery. The Individual Officers’ Motion for Summary Judgment is granted in part and
denied in part. The claims remaining against the Individual Officers are: excessive force and state-
law assault and battery.

IT IS SO ORDERED.

NOTES AND QUESTIONS

1. Civil Rights and Constitutional Torts. Is Irvin a tort claim, a civil rights claim, or a claim about
constitutional rights violations? The answer is all three. Like Bivens claims (discussed in Chapter
6), a range of lawsuits brought against government actors for constitutional violations resulting in
personal injury are called “constitutional p. 769torts.” When such actions are brought against state
(as opposed to federal actors), they are usually brought under a Reconstruction-era statute
originally named the “Ku Klux Klan Act,” and specifically under a provision of that Act that now
appears in the United States Code as 42 U.S.C. §1983. For almost a century after the enactment of
the Ku Klux Klan Act, the U.S. Supreme Court had declined to apply it to state officials accused of
violating an individual’s federal constitutional rights. However, seven years after its decision in
Brown v. Board of Education, 347 U.S. 483 (1954), the Court recognized such claims in Monroe v.
Pape, 365 U.S. 157 (1961). In part because §1983 and state tort law address some of the same
forms of wrongdoing under somewhat different rules, as a matter of practice, most plaintiffs who
sue under §1983 also bring parallel state-law tort claims, as did the plaintiff in Irvin.

2. Arrests and Warrants. Often when a person is detained by a government official such as a
police officer, that detention is undertaken pursuant to an arrest warrant. An arrest warrant is a
document issued by a judge, or some other official with the appropriate authority, that directs the
recipient of the document to arrest an identifiable person (or persons). Typically, warrants are
issued only upon the presentation of evidence to the judge (or other official issuing the warrant) that
there is probable cause to believe that the person to be arrested has committed a crime. When a
government official arrests a person pursuant to a warrant that is actually valid, or in good faith
relies on a warrant that appears valid on its face, she does not face liability for false imprisonment.
However, this protection from liability only applies to actions undertaken within the scope of the
warrant. Thus, if officer O arrests person P under a warrant that authorizes the arrest of different
person D, O is not sheltered from liability by virtue of the warrant. Likewise, the arresting official
may lose the protection provided by the warrant if she acts outside the authority it provides by using
excessive force in arrest.

3. Warrantless Arrests. Although a warrant thus provides considerable protection from liability for
false imprisonment, government officials and private citizens also enjoy a limited privilege to arrest

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even in the absence of a warrant. (The phrase “citizen’s arrest” is a shorthand description of a
situation in which such a privilege attaches.) There are two common scenarios in which one private
citizen is privileged to arrest another. In the first, a serious criminal offense (usually a felony) has
actually been committed. If that is the case, and if the actor who arrests the other acts with
“probable cause” — objectively reasonable grounds — to believe that the other committed the
offense in question, he is privileged to detain the other. See Restatement (Third) of Torts:
Intentional Torts to Persons §35 (Tent. Draft No. 5, April 15, 2020). According to the Third
Restatement, this privilege is not lost even if the actor has an “ulterior motive”. See id. §42(a)
Illustration 1 and cmt. b. In this respect, the Third Restatement is in conflict with the Second
Restatement, which deemed the privilege lost if the actor did not act out of a good-faith desire to
aid in the administration of the law, but rather used the occasion to harass, extort, or intimidate the
detainee.

In the second scenario, the detainee, in the presence of the defendant, is in the process of
attempting a serious criminal offence, or commits (or is about to commit) p. 770a breach of the
peace (e.g., by fighting in public). See id. §36. Under these circumstances, the privilege to arrest
will attach even if the plaintiff was not in the process of committing, or about to commit, a felony, as
long as the defendant’s belief about that fact was reasonable. Thus, if D detains C based on a
reasonable but false belief that C is about to commit a serious crime, D can invoke the privilege.
This treatment is in conflict with the position previously taken in Restatement (Second) of Torts
§119(c)-(d) & cmt. o (1965).

4. Excessive Force: Civil Rights and Battery. The privilege to arrest, even if otherwise properly
invoked, is lost if the arrest is undertaken with excessive force. See Restatement (Third) of Torts:
Intentional Torts to Persons §42 (Tent. Draft No. 5, April 15, 2020). Whether brought as a federal
civil rights claim or a common law battery claim, the core issue in excessive force cases is the
same: whether the person invoking the privilege to arrest used excessive force in effecting the
arrest. As can be seen in Irvin, in Section 1983 actions, the burden is on the plaintiff to prove
excessive force so as to establish that he was subjected to an “unreasonable” seizure in violation of
the Constitution. Courts have split over whether, in a common law battery suit against a police
officer claiming use of excessive force in arrest, the burden is on the plaintiff to prove
excessiveness or on the defendant to prove reasonableness. Edson v. City of Anaheim, 74 Cal.
Rptr. 2d 614 (Ct. App. 1998).

5. Qualified Immunity. Judge Oliver’s Irvin decision rejected several of the individual police
officers’ motions for summary judgment, including some based on the defense of “qualified
immunity.” In this respect, Irvin is arguably unusual, for qualified immunity has, over the past
several decades, provided police officers and other state actors with a powerful shield against
liability for claims predicated on civil rights violations. The U.S. Supreme Court recognized the
defense of qualified immunity in Pierson v. Ray, 386 U.S. 547 (1967). Pierson held that the
defendant police officers would not face liability for having arrested the plaintiffs for their violation of
an unconstitutional statute so long as the “jury found that the officers reasonably believed in good
faith that the arrest was constitutional.” The “good faith” idea at the core of Pierson’s protection was
considerably expanded by the Court in Harlow v. Fitzgerald, 457 U.S. 800 (1982), which held that a
plaintiff must prove that the defendant violated “clearly established rights,” of the plaintiff and
indicated that the defendant’s subjective good faith was no longer critical. Writing for himself and
five other Justices in Anderson v. Creighton, 483 U.S. 635 (1987), Justice Scalia extended

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defendants’ protection from liability by insisting that the “clearly established right” must be
established at a specific level, and defining the standard in terms of whether a reasonable state
actor could have believed the action undertaken to be constitutionally permissible.

Police misconduct against persons of color gained renewed public attention in the wake of
demonstrations following the police killing of George Floyd in May 2020, and in July 2020 the
House or Representatives passed a bill that would have eliminated qualified immunity. Senate
leadership and the White House both declined to move the legislation forward, but the topic of
qualified immunity remains the subject of heated debate. A range of judges and academics on the
political “left” and “right” maintain p. 771that qualified immunity is a judicial invention with no
legitimate historical pedigree and should therefore be eliminated. See, e.g., Baxter v. Bracey, 140
S. Ct. 1862 (2020) (Thomas, J., dissenting from the denial of certiorari) (Baxter, like Irvin, involved
an allegation that the police had wrongfully set a dog on the plaintiff).

Citing Justice Thomas’s Baxter opinion in a searing critique of federal qualified immunity, Judge
Carlton Reeves of the Southern District of Mississippi explicitly noted its role in shielding state
actors from accountability for constitutional rights violations brought by persons of color. Jamison v.
McClendon, 2020 WL 4497723 (S.D. Miss., Aug. 4, 2020). The plaintiff, Clarence Jamison, “a Black
man driving a Mercedes convertible,” was “pulled over and subjected to one hundred and ten
minutes of an armed police officer badgering him, pressuring him, lying to him, and then searching
his car top-to-bottom for drugs.” Id. at *2. Jamison sued, seeking compensatory damages for
psychological harm and for $4,000 in damage to the car, as well as punitive damages. Judge
Reeves dismissed the case on grounds of qualified immunity, but plainly believed that the doctrine
prevents courts from being able to address legitimate complaints of persons subjected to
unconstitutional searches and seizures because of their race:

Jamison’s traffic stop cannot be separated from this context. Black people in this country are
acutely aware of the danger traffic stops pose to Black lives. Police encounters happen regardless
of station in life or standing in the community; to Black doctors, judges, and legislators alike. United
States Senator Tim Scott was pulled over seven times in one year — and has even been stopped
while a member of what many refer to as “the world’s greatest deliberative body.” The “vast
majority” of the stops were the result of “nothing more than driving a new car in the wrong
neighborhood or some other reason just as trivial.”

Id. at *22.

6. Monell and the Protection of Municipalities. In his analysis of Irvin’s claims against the City of
Shaker Heights, Judge Oliver notes that, under the doctrine of Monell v. Dep’t of Social Servs., 436
U.S. 658 (1978), cities cannot be held vicariously liable for the actionable constitutional torts of
individual state actors. (For materials on vicarious liability, see Chapter 8.) Instead, a city is subject
to liability for its employees’ civil rights violations only if those violations are proven to have resulted
from official city action, such that the injury was inflicted by the execution of the city’s “policy or
custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to
represent official policy.” Id. Civil rights plaintiffs suing under 42 U.S.C. §1983 are rarely able to
provide what courts regard as sufficient evidence of a “pattern or practice” of state employee
constitutional violation to establish a Monell claim against the city or municipality. However, Joanna
Schwartz has determined that, despite the absence of vicarious liability in this context,
governmental entities as a matter of practice typically indemnify police officers who face individual

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liability for civil rights violations.

7. Common Law Tort Versus Section 1983. Grant and Irvin involved (among other things) an
“arrest” because, in each case, the plaintiff was confined by another p. 772with the intention “to
bring . . . [him] before a court, body, or official or otherwise secure the administration of the law.”
Restatement (Third) of Torts: Intentional Torts to Persons §35, cmt. e (Tent. Draft No. 5, April 15,
2020). In both cases, plaintiffs brought intentional tort claims against the defendants for injuries
suffered in the course of arrests. The claim brought by Grant was for false imprisonment under
Texas common law, and the claim brought by Irvin was for battery, assault, and intentional infliction
of emotional distress (covered in Chapter 10) under Ohio common law. Notice, however, that Irvin
had to prove that the defendants acted maliciously, in bad faith, or wantonly or recklessly to
establish liability on his arrest-related claims, whereas Grant only had to prove that manager
Calhoun intended to confine him, and either did so on the basis of an unreasonable suspicion, or
did so in an unreasonable manner. This is because Ohio, like many states, affords special legal
protections to police officers by limiting their liability to instances of highly culpable misconduct.

Suppose Mastnardo had been a neighbor who, fed up with the illegal drug trade on his street,
confronted Irvin and then ordered his dog to attack Irvin in order to detain Irvin so that he could be
taken into custody by police. In this hypothetical situation, Irvin would be able to prevail on his
battery and assault claims by proving that Mastnardo had no probable cause for the arrest and
used excessive force in making the arrest, without further proof that Mastnardo acted maliciously, in
bad faith, or wantonly or recklessly. See Restatement (Third) of Torts: Intentional Torts to Persons
§35 and §42 (Tent. Draft No. 5, April 15, 2020). Why are police treated differently than private
citizens in this context? Could this explain the need for Section 1983? Given the doctrine of
qualified immunity, does Section 1983 fill this need?

8. Statutory Authorization of Deadly Force and Suspects’ Constitutional Rights. In Tennessee

v. Garner, 471 U.S. 1 (1985), a police officer shot a teenager as he fled from a house that he had
attempted to rob. At the time, the teenager was climbing a fence with his back to the officer, and the
officer was “reasonably sure” that the teenager was unarmed. Tennessee statutory law permitted a
police officer to use deadly force against a fleeing criminal suspect who had ignored a command to
stop, even if the sole reason for using such force was to prevent the person from escaping.
Reasoning that “[i]t is not better that all felony suspects die than that they escape,” the Supreme
Court struck down the statute on the ground that its authorization of the use of deadly force against
a fleeing suspect who does not present an imminent physical danger to others violates the
suspect’s right to be free from unreasonable seizure. Compare Scott v. Harris, 550 U.S. 372 (2007)
(where the driver of a speeding car who is fleeing from arrest for a traffic offense poses a
substantial, immediate risk of serious physical injury to others, police officers do not violate the
driver’s Fourth Amendment right against unreasonable seizure by using their vehicles to force the
driver’s vehicle off the road, notwithstanding that such a maneuver posed a risk of serious harm to
the driver and in fact resulted in his paralysis).

p. 773

REFERENCES/FURTHER READING

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Intent and Substantial Certainty

John Finnis, Intention in Tort Law, in David G. Owen (ed.), Philosophical Foundations of Tort Law
229 (1995).

David J. Jung & David I. Levine, Whence Knowledge Intent? Whither Knowledge Intent?, 20 U.C.
Davis L. Rev. 551 (1987).

Walter Probert, A Case Study of Interpretation in Torts: Garratt v. Dailey, 19 U. Tol. L. Rev. 73
(1987).

Ellen S. Pryor, The Stories We Tell: Intentional Harms and the Quest for Insurance Funding, 75
Tex. L. Rev. 1721 (1997).

Kenneth W. Simons, Rethinking Mental States, 72 B.U. L. Rev. 463 (1992).

Kenneth W. Simons, Statistical Knowledge Deconstructed, 92 B.U. L. Rev. 1 (2012).

Symposium on the Third Restatement of Torts, 54 Vand. L. Rev. 1133 et seq. (2001) (articles and
commentary by Profs. Henderson & Twerski, Armour & Sebok).

Apportionment of Responsibility

Ellen Bublick, Citizen No-Duty Rules: Rape Victims and Comparative Fault, 99 Colum. L. Rev. 1413
(1999).

Gail D. Hollister, Using Comparative Fault to Replace the All-or-Nothing Lottery Imposed in
Intentional Tort Suits in Which Both Plaintiff and Defendant Are at Fault, 46 Vand. L. Rev. 121
(1993).

Domestic Violence and Intentional Torts

Martha Chamallas and Jennifer Wriggins, The Measure of Injury (2010).

Jennifer Wiggins, Domestic Violence Torts, 75 S. Cal. L. Rev. 121 (2001).

Vosburg, Unintended Effects and Transferred Intent

Vincent R. Johnson, Transferred Intent in American Tort Law, 87 Marq. L. Rev. 903 (2004).

William L. Prosser, Transferred Intent, 45 Tex. L. Rev. 650 (1967).

Osborne M. Reynolds, Jr., Tortious Battery, 37 Okla. L. Rev. 717 (1984).

Osborne M. Reynolds, Jr., Transferred Intent: Should Its “Curious Survival” Continue?, 50 Okla. L.
Rev. 529 (1997).

Symposium on Vosburg v. Putney, 1992 Wis. L. Rev. 853 et seq. (articles and comments by Profs.
Henderson, Rabin, Hurst & Zile).

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Consent

Larry Alexander, The Moral Magic of Consent (II), 2 Leg. Theory 165 (1996).

Heidi M. Hurd, The Moral Magic of Consent, 2 Leg. Theory 121 (1996).

Alan Wertheimer, What Is Consent? And Is It Important?, 3 Buff. Crim. L. Rev. 557 (2000).

Symposium, Five Approaches to Legal Reasoning in the Classroom: Contrasting Perspectives on

O’Brien v. Cunard S.S. Co., 57 Mo. L. Rev. 346 (1992).

p. 774Self-Defense

Symposium, Self-Defense and Relations of Domination: Moral and Legal Perspectives on Battered
Women Who Kill, 57 U. Pitt. L. Rev. 461 et seq. (1996) (articles and commentaries by Profs.
Richards, Schneider, Armour, Young, Fletcher, Zipursky, Gauthier, Finklestein, Pendleton,
Thompson, Ripstein, Sebok, Cohen, Chamallas & Horowitz).

Defense of Property and Detention/Arrest

Regina Austin, Of False Teeth and Biting Critiques: Jones v. Fisher in Context, 15 Touro L. Rev.
389 (1999).

Anne-Marie Harris, Shopping While Black: Applying 42 U.S.C. §1981 to Cases of Consumer Racial
Profiling, 23 Bos. Coll. Third World L.J. 1 (2003).

Geoffrey W. R. Palmer, The Iowa Spring Gun Case: A Study in American Gothic, 56 Iowa L. Rev.
1219 (1971).

Richard A. Posner, Killing or Wounding to Protect a Property Interest, 14 J.L. & Econ. 201 (1971).

Qualified Immunity and Constitutional Tort Claims Under 42 U.S.C §1983

William Baude, Is Qualified Immunity Unlawful?, 106 Calif. L. Rev. 45 (2018).

Richard Fallon, Jr., Bidding Farewell to Constitutional Torts, 107 Cal. L. Rev. 933 (2019).

Joanna Schwartz, The Case Against Qualified Immunity, 93 Notre Dame L. Rev. 1797 (2018).

Michael L. Wells, Civil Recourse, Damages-as-Redress, and Constitutional Torts, 46 Ga. L. Rev.
1003 (2012).

Notes

*1 This usage is quite modern relative to the 800-year history of Anglo-American tort law. It
emerged in the late 1800s as judges switched from older nomenclature — in which every tort cause
of action was said to be an instance either of “trespass” or “trespass on the case” — to modern
usage, under which each nominate tort (“assault,” “battery,” “fraud,” “libel,” “negligence,” et al.) is
treated as a cause of action in its own right.

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**1 As discussed in more detail in Part Two and the materials in this chapter, this distinction needs
to be handled with care. Negligence often takes the form of inadvertence or heedlessness, but
sometimes it can be “advertent.” For example, imagine a driver on a lightly traveled road who is
aware that he is driving at an unreasonably dangerous rate of speed, yet continues to do so for the
enjoyment of it without any intent to harm another or knowledge that he will harm another. If,
because of his speeding, the driver unexpectedly runs into and injures another driver, he may be
subject to liability for negligence, but not for battery, assault, etc.

*2 Note that employers’ respondeat superior liability more typically attaches when employees
commit the tort of negligence. See, e.g., Walter v. Wal-Mart (Chapter 1). Indeed, courts will often,
but not always, treat employees’ intentional torts as falling outside the scope of employment, and
hence as not providing a basis for employer vicarious liability. See Taber v. Maine, Chapter 8.

*3 The American Law Institute (ALI) and its Restatement projects are described in Chapter 1, Note
5 following Walter v. Wal-Mart. As explained there, the ALI is presently publishing the Third
Restatement of Torts in installments. That project has thus far produced a generic definition of
“intent.” See Restatement (Third) of Torts: Liability for Physical and Emotional Harm §1 (2010), as
well as intentional tort provisions on battery, assault, and other topics. Many provisions in the
Restatement (Third) of Torts: Intentional Torts to Persons have been approved since 2015, but
other parts are still being debated by the membership.

*4 This is consistent with the approach adopted in the “Intentional Torts to Persons” provisions of
the Restatement (Third) of Torts. While noting that a majority of the state appellate courts that have
considered the issue (which turns out to be only a handful) place the burden on the plaintiff to prove
lack of consent, comment f to §1 of that portion of the Restatement also notes that the issue
remains unsettled and takes no position on it.

**2 B acted when he boarded and took his position on the bus, but those actions are not relevant to
an inquiry into whether B committed battery against F (unless F is prepared to show that B took the
position on the bus that he did as part of an elaborate plan to slam into F).

*5 Restatement (Third) of Torts: Intentional Torts to Persons §4 (Tent. Draft No. 4, April 1, 2019).

*6 As the Reporter’s use of the word “purposeful” is meant to emphasize, the “specific intent”
requirement for this separate tort is meant to be narrower than the requirement of “intent” built into
the tort of battery. To be liable for purposeful infliction of bodily harm, an actor must intend to harm
the victim. The intent requirement for battery is discussed in the next section of this chapter.

*7 [As discussed at length in Part Two of this book, “negligence” is the name of a distinct tort that,
unlike battery, does not require proof that the defendant intended some form of contact with the
plaintiff. At its core, negligence is about carelessness rather than intentionality. An inattentive car
driver who accidentally collides his car with another car, thereby injuring the driver of the other car,
is subject to liability for negligence, not battery. — Eds.]

*8 The Spivey court’s ruling may have been driven more by a desire to ensure plaintiff a remedy
than by an adequate account of the intent element of battery. The court also seems to have
assumed that Florida law would permit Spivey to proceed with her negligence claim against
Battaglia even though workplace injuries caused by a co-employee’s negligence were at the time

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(as they are now) covered by Florida workers’ compensation law rather than negligence law.
Indeed, Spivey later received workers’ compensation benefits from the company, either in addition
to or instead of recovering on her tort claim against Battaglia. See Spivey v. Battaglia Fruit Co., 287
So. 2d 302 (1973).

*9 However, even if a plaintiff can establish that she was injured by acts on the part of the
defendant that amounted to the simultaneous commission of two different torts against the plaintiff,
she will still recover only the normal measure of compensatory damages (rather than twice the
normal measure). The two torts would be understood as providing alternative grounds for the single
damages award.

*10 As explained briefly in Chapter 1 in notes following Walter v. Wal-Mart, when a defendant files a
Rule 12(b)(6) motion to dismiss, it is asserting that, even if all the facts alleged in plaintiff’s
complaint are true, they do not generate a claim against the defendant under applicable law. In
making such a motion, the defendant is hoping to terminate litigation at the very outset, prior to the
“discovery” phase of litigation.

**3 In many court systems, including the federal courts and in this case the Utah state courts, the
highest court in the system has broad discretion to choose whether or not to review decisions made
by lower courts. A “petition for a writ of certiorari” is a request from a party to a lawsuit that is
directed to a high court, which asks it to review a lower court decision for possible error. The high
court accepts such a request by granting the petition and thereupon issuing a writ of certiorari to
the lower court. (The phrase “writ of certiorari” refers to an order from a high court to a lower court
indicating that the former wishes to “apprise itself” of the proceedings in the latter.)

*11 Although Garratt has come to stand as a leading authority for the existence of a separate
“knowledge” standard for battery liability, the facts of the case do not seem to have necessitated or
even warranted application of that standard. If, as his aunt contended, Brian moved the chair as a
prank, he acted for the purpose of causing his aunt to suffer a harmful touching, and no separate
knowledge standard is required to establish that he acted with the requisite intent. If, however,
Brian had no idea that his aunt was about to sit down in the chair when he moved it, it would seem
that he failed to act with the requisite intent even under the knowledge standard. After all, if he
didn’t know she was about to sit, how could he be certain that, by moving it, he would cause her to
fall?

*12 We assume that H did not serve food to G for the purpose of causing some other unwanted
touching of G; for example, for the purpose of causing him to choke or to burn his tongue. If H
acted with such a purpose, and then ended up causing the desired injury to G by the unexpected
means of generating an allergic reaction, he might be held liable for battery.

*13 As noted above in connection with the presentation of the prima facie case of battery, some
jurisdictions treat lack of consent as an additional element of assault, whereas this book treats lack
of consent as an affirmative defense. This is consistent with Restatement (Third) of Torts:
Intentional Torts to Persons §5 (Tent. Draft. No. 4, April 1, 2019).

*14 [1 rod = 16.5 feet — EDS.]

*15 Congress stated in . . . legislative history . . . that “paragraph (6) excepts debts for willful and

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malicious injury by the debtor to another person or to the property of another person. Under this
paragraph, ‘willful’ means deliberate or intentional. To the extent that Tinker v. Colwell, 193 U.S.
473, 24 S. Ct. 505, 48 L. Ed. 754 (1902), held that a looser standard is intended, and to the extent
that other cases have relied on Tinker to apply a ‘reckless disregard’ standard, they are overruled.”
H.R. Rep. 95-595, 95th Cong., 1st Sess., 365 (1977), U.S. Code Cong. & Admin. News 1978, pp.
5787, 6320-21.

*16 An example of an answer that raises affirmative defenses to a negligence claim is provided in
the Appendix.

*17 [Virginia law immunizes public employees from liability for official acts involving ordinary
negligence. Thus, the Koffmans were required to prove at least gross negligence on Garnett’s part.
— Eds.]

*18 Because we have concluded that a cause of action for an intentional tort was sufficiently pled,
on remand, the Koffmans may pursue their claim for punitive damages.

*19 The inefficacy of “hypothetical consent” relates to another feature of tort law as it bears on the
intent element of battery, assault, and other torts. This feature is sometimes expressed as a
distinction between the motives for which one touches another and the intent with which one
touches another. In the above hypothetical, D’s motives arguably were good — he sincerely meant
his touching of P to confer a benefit on P. Still, he acted with intent to touch P in a harmful way, and
in the eyes of tort law that intent is not somehow undermined or negated by the fact that D formed
and acted on this intent out of beneficent motives.

*20 As discussed in Pingaro v. Rossi, Chapter 11, some state statutes impose strict liability on dog
owners to persons who are attacked while on the owner’s property by permission or otherwise
lawfully. The issue here pertains only to the right to use reasonable means to repel trespassers.

2 Upon a showing that a person is chemically dependent and evidences an imminent, substantial
risk of serious harm to himself or to others, a judge or magistrate may order that such person be
apprehended and transported to a treatment facility. Tex. Health & Safety Code Ann. §§462.042-43
(Vernon 1992 & Supp. 1998).

*21 A private actor may be deemed to have acted under color of law if his conduct toward the
plaintiff was undertaken in coordination with government officials or if he enjoyed special authority
to detain the plaintiff by virtue of a delegation of authority from the government. See, e.g., Payton v.
Rush-Presbyterian-St. Luke’s Medical Center, 184 F.3d 623, 628 (7th Cir. 1999) (holding that
hospital security guards acted under color of law in detaining the plaintiff because of the authority
delegated to them by Illinois law).

1 . . . Grant argues the trial court erred in granting summary judgment because it should have
presumed the missing videotape was unfavorable to Stop-N-Go. Stop-N-Go argues Grant was not
entitled to this presumption because he has not shown the videotape was intentionally destroyed.
Although we need not decide this issue . . . , we note that Grant may be entitled to a jury
instruction on this presumption.

2 In Morales, the plaintiff was an employee at a doctor’s office. The doctor accused the plaintiff of

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stealing five dollars. When she denied it, he screamed, hollered, threatened her, and then fired her
and told her to leave. The plaintiff won on her false imprisonment claim in a jury trial. The appellate
court reversed because it found there was no evidence of false imprisonment. Morales is
distinguishable. It involved a full trial, where all the evidence was developed; here, it was a
summary judgment proceeding. In Morales, the defendant only threatened to call the police,
whereas here, Stop-N-Go actually did call the police.

1 Mastnardo gives conflicting testimony about when, or if, he saw a hand-to-hand transaction.
However, for the purposes of a qualified immunity analysis, the court credit[]s Plaintiff’s version of
the facts as true.

Panel 1: the boy on the left says, “You wouldn’t know this, but, as a 1 L, I can tell you that
‘assault’ need not involve unwanted contact; you’re confused with ‘battery.’”

Panel 2: the boy on the right holds his fist out. The fist is surrounded by a starburst and the
phrase “POW!” has appeared above the fist. The character who spoke is falling backward
with his feet off the ground.

The caption reads, “Not assaulting a 1 L.”

My Notes

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