1. Chpt. 2 The Substantive Law Governing Liability for Battery
Zhu WANG
LLD., Professor of Law School of Sichuan University.
Deputy Director of Institute for Chinese Tort Law of RCCCJ of Renmin University of China.
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2. Chpt. 2 The Substantive Law Governing Liability for Battery
Table of Contents
A. Definitions in Restat 2d of Torts
B. A Prima Facie Case of Battery
C. Privileges

3. A. Definitions in Restat 2d of Torts
§13. BATTERY: HARMFUL CONTACT
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, and
(b) a harmful contact with the person of the other directly or indirectly results.

4. A. Definitions in Restat 2d of Torts
§18. BATTERY: OFFENSIVE CONTACT
(1) 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, and
(b) an offensive contact with the person of the other directly or indirectly results.

5. A. Definitions in Restat 2d of Torts
(2) An act which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for a mere offensive contact with the other's person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

6. A. Definitions in Restat 2d of Torts
§2 Act
The word "act" is used throughout the Restatement of this Subject to denote an external manifestation of the actor's will and does not include any of its results, even the most direct, immediate, and intended.

7. A. Definitions in Restat 2d of Torts
Prima facie case
The elements of intent and harmful or offensive contact constitute what is known as the plaintiff's prima facie case.
The plaintiff must prove these elements, together with the necessary causal connection between the harm incurred and the defendant's conduct.
If the defendant had a privilege to inflict harm upon the plaintiff it is up to the defendant to assert this privilege as a defense.

8. B. A Prima Facie Case of Battery
1. Intent
a. What Consequences Must the Defendant Intend to Commit a Battery?
Case 1 Vosburg v. Putney, 80 Wis. 523, 50 N.W. 403 (1891)

9. B. A Prima Facie Case of Battery
b. Which Mental States Constitute Intent to Cause a Harmful or Offensive Contact?
Case 2 Garratt v. Dailey, 46 Wash. 2d 197, 279 P.2d 1091 (1955)

10. B. A Prima Facie Case of Battery
Problem 1

11. B. A Prima Facie Case of Battery
2. Contact
a. What Constitutes Contact?
Clear enough:
In Vosburg the kick on the shin.
Less obvious:
In Garratt the defendant moved the chair caused the plaintiff to come into harmful contact with the ground.

12. B. A Prima Facie Case of Battery
Contact?
Commonwealth v. Stratton, 114 Mass. 303 (1873):
the plaintiff ate a piece of fruit that the defendant had poisoned two hours earlier.

13. B. A Prima Facie Case of Battery
Note:
It is sufficient if the defendant causes contact with something very closely associated with the plaintiff's person, such as the clothing the plaintiff was wearing, the cane he was holding, the horse he was riding, or the car he was driving.

14. B. A Prima Facie Case of Battery
b. Which Intended Contacts Are Wrongful?
Restat 3d of Torts, Liability for Physical and Emotional Harm
§ 4. Physical Harm
“Physical harm” means the physical impairment of the human body (“bodily harm”) or of real property or tangible personal property (“property damage”). Bodily harm includes physical injury, illness, disease, impairment of bodily function, and death.

15. B. A Prima Facie Case of Battery
Restat 2d of Torts
§19. WHAT CONSTITUTES OFFENSIVE CONTACT
A bodily contact is offensive if it offends a reasonable sense of personal dignity.

16. B. A Prima Facie Case of Battery
COMMENT:
a. In order that a contact be offensive to a reasonable sense of personal dignity, it must be one which would offend the ordinary person and as such one not unduly sensitive as to his personal dignity. It must, therefore, be a contact which is unwarranted by the social usages prevalent at the time and place at which it is inflicted.

17. B. A Prima Facie Case of Battery
Fisher v. Carrousel Motor Hotel, 424 S.W.2d 627 (Tex. 1967)

18. B. A Prima Facie Case of Battery
Leichtman v. WLW Jacor Communications, Inc., 634 N.E.2d 697 (Ohio App. 1994)

19. C. Privileges Two types of privileges:
1. consensual privileges (consent), which depend on the plaintiff agreeing to the defendant's otherwise tortious act;
2. nonconsensual privileges, which shield the defendant from liability for otherwise tortious conduct even if the plaintiff objects to the defendant's conduct.

20. C. Privileges 1. Consent a. Restat 2d of Torts §892 Meaning of Consent
(1) Consent is willingness in fact for conduct to occur. It may be manifested by action or inaction and need not be communicated to the actor.
(2) If words or conduct are reasonably understood by another to be intended as consent, they constitute apparent consent and are as effective as consent in fact.

21. C. Privileges
Case 5
O'Brien v. Cunard Steamship Co., 154 Mass. 272, 28 N.E. 266 (1891).

22. C. Privileges
Case 6
Barton v. Bee Line, Inc., 238 App. Div. 501, 265 N.Y.S. 284 (1933).

23. C. Privileges
Case 7
Bang v. Charles T. Miller Hospital, 251 Minn. 427, 88 N.W.2d 186 (1958).

24. C. Privileges
Case 8
Kennedy v. Parrott, 243 N.C. 355, 90 S.E.2d 754 (1956).

25. C. Privileges
Case 9
Hackbart v. Cincinnati Bengals, Inc., 601 F.2d 516 (10th Cir. 1979)

26. C. Privileges
Case 10
State Farm Fire & Casualty Company v. S.S. & G.W., 858 S.W.2d 374 (Tex. 1993).

27. C. Privileges
Problem 2

28. C. Privileges 2. Self-Defense a. Restat 2d of Torts
§63. SELF-DEFENSE BY FORCE NOT THREATENING DEATH OR SERIOUS BODILY HARM
(1) An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to defend himself against unprivileged harmful or offensive contact or other bodily harm which he reasonably believes that another is about to inflict intentionally upon him.

29. C. Privileges
(2) Self-defense is privileged under the conditions stated in Subsection (1), although the actor correctly or reasonably believes that he can avoid the necessity of so defending himself,
(a) by retreating or otherwise giving up a right or privilege, or
(b) by complying with a command with which the actor is under no duty to comply or which the other is not privileged to enforce by the means threatened.

30. C. Privileges
§65. SELF-DEFENSE BY FORCE THREATENING DEATH OR SERIOUS BODILY HARM
(1) Subject to the statement in Subsection (3), an actor is privileged to defend himself against another by force intended or likely to cause death or serious bodily harm, when he reasonably believes that
(a) the other is about to inflict upon him an intentional contact or other bodily harm, and that
(b) he is thereby put in peril of death or serious bodily harm or raivishment, which can safely be prevented only by the immediate use of such force.

31. C. Privileges
(2) The privilege stated in Subsection (1) exists although the actor correctly or reasonably believes that he can safely avoid the necessity of so defending himself by
(a) retreating if he is attacked within his dwelling place, which is not also the dwelling place of the other, or
(b) permitting the other to intrude upon or dispossess him of his dwelling place, or
(c) abandoning an attempt to effect a lawful arrest.

32. C. Privileges
(3) The privilege stated in Subsection (1) does not exist if the actor correctly or reasonably believes that he can with complete safety avoid the necessity of so defending himself by
(a) retreating if attacked in any place other than his dwelling place, or in a place which is also the dwelling of the other, or
(b) relinquishing the exercise of any right or privilege other than his privilege to prevent intrusion upon or dispossession of his dwelling place or to effect a lawful arrest.

33. C. Privileges §70. CHARACTER AND EXTENT OF FORCE PERMISSIBLE
(1) The actor is not privileged to use any means of self-defense which is intended or likely to cause a bodily harm or confinement in excess of that which the actor correctly or reasonably believes to be necessary for his protection.

34. C. Privileges
(2) The actor may be privileged in self-defense to do an act which is intended to put another in immediate apprehension of a harmful or offensive contact or other bodily harm or a confinement, which is in excess of that which the actor is privileged to inflict, if his act is intended and reasonably believed by him to be likely to do no more than to create such an apprehension.

35. C. Privileges §71 Force in Excess of Privilege
If the actor applies a force to or imposes a confinement upon another which is in excess of that which is privileged,
(a) the actor is liable for only so much of the force or confinement as is excessive;
(b) the other's liability for an invasion of any of the actor's interests of personality which the other may have caused is not affected;
(c) the other has the normal privilege stated in this Topic to defend himself against the actor's use or attempted use of excessive force or confinement.

36. C. Privileges
Case 11
Courvoisier v. Raymond, 23 Colo. 113, 47 P. 284 (1896).

37. C. Privileges
Problem 3

38. C. Privileges
Problem 4

39. C. Privileges 3. Defense of Others Scope:
Although at early common law the privilege to defend third persons against harmful contacts encompassed only one's family and household, it is now generally agreed that the privilege extends to protecting total strangers as well.

40. C. Privileges
The force that may be used by an intervenor to repel an attack on another is measured by the force that the other could lawfully use. Thus, if the attack imperils the life of the third person, the intervenor can use deadly force on behalf of that person.

41. C. Privileges Restat 2d of Torts §76 Defense of Third Person
The actor is privileged to defend a third person from a harmful or offensive contact or other invasion of his interests of personality under the same conditions and by the same means as those under and by which he is privileged to defend himself if the actor correctly or reasonably believes that

42. C. Privileges
(a) the circumstances are such as to give the third person a privilege of self-defense, and
(b) his intervention is necessary for the protection of the third person.

43. C. Privileges 4. Defense of Property a. Restat 2d of Torts
§77. DEFENSE OF POSSESSION BY FORCE NOT THREATENING DEATH OR SERIOUS BODILY HARM
An actor is privileged to use reasonable force, not intended or likely to cause death or serious bodily harm, to prevent or terminate another's intrusion upon the actor's land or chattels, if
(a) the intrusion is not privileged…and

44. C. Privileges
(b) the actor reasonably believes that the intrusion can be prevented or terminated only by the force used, and
(c) the actor has first requested the other to desist and the other has disregarded the request, or the actor reasonably believes that a request will be useless or that substantial harm will be done before it can be made.

45. C. Privileges
§79. DEFENSE OF POSSESSION BY FORCE THREATENING DEATH OR SERIOUS BODILY HARM
The intentional infliction upon another of a harmful or offensive contact or other bodily harm by a means which is intended or likely to cause death or serious bodily harm, for the purpose of preventing or terminating the other's intrusion upon the actor's possession of land or chattels, is privileged if, but only if, the actor reasonably believes that the intruder, unless expelled or excluded, is likely to cause death or serious bodily harm to the actor or to a third person whom the actor is privileged to protect.

46. C. Privileges
Case 12
Katko v. Briney, 183 N.W.2d 657 (Iowa 1971).

47. C. Privileges 5. Necessity
Case 13 Ploof v. Putnam, 81 Vt. 471, 71 A. 188 (1908).
Case 14 Vincent v. Lake Erie Transportation Co., 109 Minn. 456, 124 N.W. 221 (1910)

48. C. Privileges
Problem 5

49. 6. Miscellaneous Privileges
C. Privileges
6. Miscellaneous Privileges
a. Privileges arise primarily out of the status of the parties.
Privileges protect parents and teachers from battery claims brought on behalf of children they have physically disciplined.

50. b. Reasonableness to use force
C. Privileges
b. Reasonableness to use force
Acts relating to the arrest of lawbreakers and the prevention of crime
Enforcement of military orders
Recapture of land and possessions.