Intent and Consent in the Tort of Battery: Confusion and Controversy

Abstract

Much of contemporary torts scholarship has been devoted to determining who should bear the costs of unintended injury, that is, whether and when defendants should be strictly liable for the harm caused by their activities, as opposed to limiting plaintiffs to recovery when they can prove that the defendant’s conduct was negligent. Comparatively little scholarship has explored the appropriate distinction between the intentional torts and the non-intentional torts, such as negligence or strict liability. Recently, torts scholars have begun to explore some interesting and unresolved questions surrounding the intentional torts, particularly battery, stemming in part from the completion of various stages of the Restatement (Third) of Torts and the current position of the ALI that it will not attempt a restatement of the non-economic intentional torts that were addressed in great detail in the Restatement (Second) on the grounds that intentional tort doctrine is clear and that the Restatement (Second) provisions have been widely adopted.

This article joins the work of several torts scholars who have recently questioned the clarity of intentional tort law doctrine. These scholars have focused on the ambiguity of the Restatement’s provisions with respect to the intent to cause a harmful or offensive bodily contact, that is, whether these provisions require both intent to cause bodily contact and intent to cause harm or offense (dual intent) or whether it is sufficient that the defendant intends a bodily contact that turns out to be either harmful or offensive (single intent). Some of these scholars have also suggested that the essence of battery is not the intent to cause a harmful or offensive contact, but rather the intent to cause an unpermitted contact.

This article demonstrates that the current confusion and controversy over battery law doctrine is far more extensive than even these recent torts scholars have demonstrated. It extends beyond the element of intent and includes uncertainty concerning the role of the plaintiff’s lack of actual or apparent consent - that is, whether consent is an affirmative defense or whether lack of consent is an element of the plaintiff’s prima facie case - and the relationship between intent and lack of consent. Moreover, this confusion and controversy is reflected not only in modern battery court opinions, but also in the cursory and contradictory treatment given to battery law in most torts casebooks and treatises. Finally, despite the ALI’s assumption that the Restatement provisions have been widely adopted, there are many jurisdictions where courts are formulating battery doctrine using terminology that departs significantly from the Restatement provisions.

Part I of this article gives a detailed account of the current confusion and controversy in battery doctrine. Part II provides a brief account of the historical development of the modern tort of battery, which is necessary to understanding why it is that so many courts do not follow the Restatement’s formulations and how it is that they came to adopt a variety of different and sometimes contradictory formulations. Part III analyzes the ambiguity of the relevant Restatement provisions, rejecting the argument of some tort scholars that only the single intent rule can explain the apparently uniform results in certain kinds of cases, such as those involving practical jokers and those involving physicians and other persons whose purpose is to help, not to harm or offend. This part argues that these cases are better explained by acknowledging that certain medical procedures, such as operations, necessarily involve harmful contacts (even when ultimately beneficial) and that physicians and others often know that, in the absence of consent, certain bodily touchings will be offensive. By clearly separating the elements of intent and absence of consent, satisfaction of the intent element of battery is easily explained under both single and dual intent rules, thereby leaving resolution of these cases to a determination whether the defendant will be relieved of liability on the ground of actual or apparent consent. Part IV of the article confronts the relevant policy considerations in choosing between single and dual intent, considerations that necessarily involve the appropriate distinctions between intentional and non-intentional torts. It concludes that there is no justification for preferring the single intent rule and thereby departing from the moral fault principle that underlies much of modern tort law. It also rejects the argument from some recent tort scholars that the principle of “bodily integrity” demands fuller protection than that afforded under the dual intent rule. Part V addresses the special problem of consent in medical cases where the physician honestly but mistakenly believes that the patient has consented to the treatment provided. It agrees that physicians should not be liable in battery (as opposed to negligence) unless they knowingly depart from the patient’s wishes, but then argues that this result is a clear departure from traditional consent doctrine and should, for the most part, be limited to medical cases. Part V concludes by proposing, at least in concept, how the Restatement (Third) might best reformulate intentional tort doctrine in cases involving either harmful or offensive battery.

Keywords: torts, consent, battery, medical battery

JEL Classification: K39