WHAT IS BATTERY?
Professor Barry Furrow
Drexel University Earle Mack School of Law
§ 1. BATTERY
The plaintiff must prove certain things in any given tort claim. When the plaintiff has
produced evidence of those elements, the plaintiff has made out a "prima facie case"—a case
good "on the face of it" or at first look. When the plaintiff makes out a prima facie case, the
judge will not direct a verdict for the defendant. Instead, the judge will allow the jury to decide
the issues. The plaintiff has the burden of proving the elements necessary. The defendant may
offer defenses, but this won't be necessary if the plaintiff fails to produce enough proof to make
out the prima facie case.
b. Elements of Battery
"[T]he least touching of another in anger is a battery.... If any of them use violence against the
other, to force his way in a rude inordinate manner, it is a battery...."—Cole v. Turner, 6 Mod.
Rep. 149, 90 Eng. Rep. 958 (Nisi Prius 1704).
Snyder v. Turk
Court of Appeals of Ohio, 1993.
90 Ohio App.3d 18, 627 N.E.2d 1053.
RICHARD K. WILSON, JUDGE....
[Defendant was a surgeon performing a gall-bladder operation. The procedure did not go
well. Evidence would permit these findings: The defendant became frustrated with the operation
itself and with the plaintiff, a scrub nurse in the operating room. Defendant's perception was that
the plaintiff was making mistakes and complicating an already difficult procedure. The
defendant finally became so exasperated when the plaintiff handed him an instrument he
considered inappropriate that he grabbed her shoulder and pulled her face down toward the
surgical opening, saying "Can't you see where I'm working? I'm working in a hole. I need long
The parties agree that a "battery" is defined as an intentional, unconsented-to contact with
another. The appellee contends that there is no liability for the commission of a battery absent
proof of an intent to inflict personal injury. Dr. Turk further contends that the directed verdict
was properly granted on the battery liability issue because of the absence of evidence that he
intended to inflict personal injury....
"A person is subject to liability for battery when he acts intending to cause a harmful or
offensive contact, and when a harmful contact results. Contact which is offensive to a reasonable
sense of personal dignity is offensive contact....
A motion for a directed verdict assumes the truth of the evidence supporting the facts
essential to the claim after giving the nonmovant the benefit of all reasonable inferences from the
evidence and refers the application of a reasonable-minds test to such evidence. It is in the nature
of a demurrer to the evidence.
Applying the above test we believe that reasonable minds could conclude that Dr. Turk
intended to commit an offensive contact. The first assignment of error is sustained.
Cohen v. Smith
Appellate Court of Illinois, 1995.
269 Ill.App.3d 1087, 207 Ill.Dec. 873, 648 N.E.2d 329.
JUSTICE CHAPMAN delivered the opinion of the court:
Patricia Cohen was admitted to St. Joseph Memorial Hospital ("Hospital") to deliver her
baby. After an examination, Cohen was informed that it would be necessary for her to have a
cesarean section. Cohen and her husband allegedly informed her physician, who in turn advised
the Hospital staff, that the couple's religious beliefs prohibited Cohen from being seen unclothed
by a male. Cohen's doctor assured her husband that their religious convictions would be
During Cohen's cesarean section, Roger Smith, a male nurse on staff at the Hospital,
allegedly observed and touched Cohen's naked body. Cohen and her husband filed suit against
Nurse Smith and the Hospital. The trial court allowed defendants' motions to dismiss. We
In reviewing a motion to dismiss for failure to state a cause of action, the court must view
all well-pleaded facts in the light most favorable to the plaintiff. A trial court may dismiss a
cause of action for failing to state a cause of action, based solely on the pleadings, only if it is
clearly apparent that no set of alleged facts can be proven which will entitle a plaintiff to
The Restatement (Second) of Torts provides that an actor commits a 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, and (b) a harmful [or offensive] 1 contact
The editors of this casebook inserted the bracketed phrase. It appears in Restatement § 18,
not § 13, which the court is quoting.–Eds.
with the person of the other directly or indirectly results." (Restatement (Second) of Torts, § 13
(1965).) Liability for battery emphasizes the plaintiff's lack of consent to the touching.
"Offensive contact" is said to occur when the contact "offends a reasonable sense of personal
Historically, battery was first and foremost a systematic substitution for private
retribution. (W. Prosser & Keeton, Torts § 9, at 41 (5th ed. 1984) (Prosser).) Protecting personal
integrity has always been viewed as an important basis for battery. "Consequently, the defendant
is liable not only for contacts which do actual physical harm, but also for those relatively trivial
ones which are merely offensive and insulting." This application of battery to remedy offensive
and insulting conduct is deeply ingrained in our legal history. As early as 1784, a Pennsylvania
defendant was prosecuted for striking the cane of a French ambassador. The court furthered the
distinction between harmful offensive batteries and nonharmful offensive batteries: "As to the
assault, this is, perhaps, one of that kind, in which the insult is more to be considered than the
actual damage; for, though no great bodily pain is suffered by a blow on the palm of the hand, or
the skirt of the coat, yet these are clearly within the definition of assault and battery, and among
gentlemen too often induce duelling and terminate in murder." (Respublica v. De Longchamps
(Pa.1784), 1 Dall. 111, 1 L.Ed. 59, in Gregory, Kalven, & Epstein, Cases & Materials on Torts
Although most people in modern society have come to accept the necessity of being seen
unclothed and being touched by members of the opposite sex during medical treatment, the
plaintiffs had not accepted these procedures and, according to their complaint, had informed
defendants of their convictions. This case is similar to cases involving Jehovah's Witnesses who
were unwilling to accept blood transfusions because of religious convictions. Although most
people do not share the Jehovah's Witnesses' beliefs about blood transfusions, our society, and
our courts, accept their right to have that belief. Similarly, the courts have consistently
recognized individuals' rights to refuse medical treatment even if such a refusal would result in
an increased likelihood of the individual's death.
A person's right to refuse or accept medical care is not one to be interfered with lightly.
As Justice Cardozo stated, "Every human being of adult years and sound mind has a right to
determine what shall be done with his own body; and a surgeon who performs an operation
without his patient's consent commits an assault, for which he is liable in damages."
Accepting as true the plaintiffs' allegations that they informed defendants of their
religious beliefs and that defendants persisted in treating Patricia Cohen as they would have
treated a patient without those beliefs, we conclude that the trial court erred in dismissing both
the battery and the intentional infliction of emotional distress counts.
1. Under the Restatement rule quoted in Cohen, must the plaintiff prove an intent to harm
in order to prove a battery? Must the plaintiff prove an actual harm such as pain or a bruise? See
if you can support a yes or no answer.
2. The object of intent. What must be the object of the defendant's intent? To harm the
plaintiff? To offend? To touch? All three? Try to see if Snyder supports a rule about this.
Suppose the defendant hugs her husband in an ordinary way but, surprisingly, this breaks a
vertebrae. Is this a battery, because contact was intended and it turned out to be harmful? You
might try writing a three-sentence argument, more or less in the form of a syllogism, in which
the first sentence or premise states, with exceptions not relevant, that fault is required to establish
liability in tort.
3. In the light of the rules stated or applied in Cohen, how should the following cases be
a. Karen Whitley was standing in front of her locker at school when LeGault shoved her. The
shove caused no physical harm. LeGault argued that she was not liable because (1) no harm was
done by her shove and (2) no intent to harm was proven. Whitley v. Andersen, 37 Colo.App. 486,
551 P.2d 1083 (Colo.Ct.App.1976).
b. The plaintiff's employer was engaged in teasing and horseplay with an automobile condenser
that had been electrically charged, giving employees a mild shock. He shocked the plaintiff, who
was trying to avoid it. The plaintiff, quite unexpectedly, developed a serious nerve problem that
required surgery. Caudle v. Betts, 512 So.2d 389 (La.1987).
c. The defendant was a judge and the plaintiff's employer. Against the plaintiff's wishes, the
defendant kissed the plaintiff. Johnson v. Ramsey County, 424 N.W.2d 800 (Minn.App.1988).
4. Suppose the defendant has a good motive–he administers medical treatment over the
plaintiff's objection. E.g., Roberson v. Provident House, 576 So.2d 992 (La.1991).
5. Autonomy. The quotation preceding Cohen suggests that at one time the law was
interested only in protecting against violent or angry acts. The Cohen case makes it clear that no
such limit applies today. Is this because we want to prevent duels? Or because we want to respect
the plaintiff's personal autonomy?
6. Act. The defendant must commit some "act." What if defendant's arm strikes the
plaintiff when defendant is jostled in a crowd? What if his arm moves reflexively or out of
control in a seizure?
7. Bodily contact. Neither harm nor offense would be sufficient without bodily contact.
Does this require that the defendant's body directly touch the plaintiff's body? Imagine a
defendant who fires a bullet into the plaintiff's body and seeks to escape liability for battery on
the ground that there was no touching. Try reasoning from the purposes of battery law. Given
those purposes, would courts treat the bullet as a touching? Now consider a defendant who
shakes the limb of a tree on which the plaintiff is sitting, but does not touch the plaintiff. A
modern classic case on this point is Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627
(Tex.1967). The plaintiff, Fisher, was a mathematician attending a meeting on telemetry
equipment. He and the others at the meeting adjourned for lunch in the defendant's hotel. As the
plaintiff was about to be served, he was approached by the manager, who "snatched the plate
from Fisher's hand and shouted that he, a Negro, could not be served in the club." The court said:
"[T]he intentional grabbing of plaintiff's plate constituted a battery. The intentional snatching of
an object from one's hand is as clearly an offensive invasion of his person as would be an actual
contact with the body."
Leichtman v. WLW Jacor Communications, Inc.
Court of Appeals of Ohio, 1994.
92 Ohio App.3d 232, 634 N.E.2d 697.
... Leichtman claims to be "a nationally known" antismoking advocate. Leichtman alleges
that, on the date of the Great American Smokeout, he was invited to appear on the WLW Bill
Cunningham radio talk show to discuss the harmful effects of smoking and breathing secondary
smoke. He also alleges that, while he was in the studio, Furman, another WLW talk-show host,
lit a cigar and repeatedly blew smoke in Leichtman's face "for the purpose of causing physical
discomfort, humiliation and distress." ...
Leichtman contends that Furman's intentional act constituted a battery....
In determining if a person is liable for a battery, the Supreme Court has adopted the rule
that "[c]ontact which is offensive to a reasonable sense of personal dignity is offensive contact."
It has defined "offensive" to mean "disagreeable or nauseating or painful because of outrage to
taste and sensibilities or affronting insultingness." Furthermore, tobacco smoke, as "particulate
matter," has the physical properties capable of making contact.
As alleged in Leichtman's complaint, when Furman intentionally blew cigar smoke in
Leichtman's face, under Ohio common law, he committed a battery. No matter how trivial the
incident, a battery is actionable, even if damages are only one dollar. The rationale is explained
by Roscoe Pound in his essay "Liability": "[I]n civilized society men must be able to assume that
others will do them no intentional injury—that others will commit no intentioned aggressions
upon them." Pound, An Introduction to the Philosophy of Law (1922) 169....
We do not ... adopt or lend credence to the theory of a "smoker's battery," which imposes
liability if there is substantial certainty that exhaled smoke will predictably contact a
... Concerning Cunningham, at common law, one who is present and encourages or
incites commission of a battery by words can be equally liable as a principal....
With regard to WLW, an employer is not legally responsible for the intentional torts of its
employees that do not facilitate or promote its business....
Arguably, trivial cases are responsible for an avalanche of lawsuits in the courts. They
delay cases that are important to individuals and corporations and that involve important social
issues. The result is justice denied to litigants and their counsel who must wait for their day in
court. However, absent circumstances that warrant sanctions for frivolous appeals ... we refuse to
limit one's right to sue. Section 16, Article I, Ohio Constitution states, "All courts shall be open,
and every person, for an injury done him in his land, goods, person, or reputation, shall have
remedy by due course of law, and shall have justice administered without denial or delay."
... [W]e reverse that portion of the trial court's order that dismissed the battery claim in
the second count of the complaint. This cause is remanded for further proceedings consistent
with law on that claim only.
1. Bodily contact. If being touched by smoke is bodily contact that will support a battery
claim, what about being touched by light waves or sound waves? Your noisy neighbor bombards
you with loud music every night. Could this be a battery?
2. Damages. What kind of damages should the plaintiff recover, if any, when the contact is
merely offensive and not harmful? Courts have traditionally permitted juries to award substantial
damages even though the plaintiff has no pecuniary loss. The award is not limited to nominal
damages, and it might reach hundreds and even thousands of dollars. See DAN DOBBS, THE LAW
OF REMEDIES § 7.3 (2) (1993). In your considered opinion, is this a good idea? In addition to
compensatory damages, courts may allow punitive damages against an intentional tortfeasor who
is guilty of "malice" or wanton misconduct.