The Restatement (Second) of Torts provides that an actor commits a 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
  1. A harmful [or offensive] contact with the person of the other directly or indirectly results

It is important to realize that the tortfeasor needs to intend to cause a harmful or offensive contact or an imminent apprehension of such contact. However, the tortfeasor does not need to intend the contact to the one who was actually harmed. If he intended the contact to a third person, yet injured a bystander, the tortfeasor may still be liable for battery.

What is harmful contact? Harmful contact causes pain or bodily damage. What is offensive contact? Offensive contact is said to occur when the contact “offends a reasonable sense of personal dignity.” Restatement (Second) of Torts ยง 19. The tortfeasor does not need to be aware that the contact is offensive.

Whenever you are analyzing battery make sure that you examine any defenses the tortfeasor might raise (i.e. consent). Upon proof of battery or assault, the plaintiff is entitled to recover nominal damages plus compensatory damages for bodily pain, humiliation, mental anguish and other injuries that occur as a necessary and natural consequence of the tortious conduct. Further, punitive damages should also be considered.



Accompanying claims to defective product under 402A

Under 402A, a plaintiff would allege a variety of claims along with a claim for defective product. Restatement (Third) seeks to encourage plaintiffs to making a unified claim. Below is a brief description and critique of the claims that typically accompany a defective product claim under 402A.


  • Allows recovery if the defendant failed to exercise reasonable care in the manufacturing or distribution of its product and the plaintiff was injured by this failure


  • Often difficult to prove that a manufacturer’s negligence led to the defect that injured the plaintiff; although a plaintiff can invoke res ipsa loquitur, the jury may deny negligence recovery, accepting the defendant’s argument that although it used due care such defects may still occur
  • Will frequently provide no remedy against the available defendant (personal j-d issues; i.e. Asahi)

Breach of express warranty (UCC 2-313)

  • Allows recovery if a seller makes specific representations about the qualities of a product, and the buyer is injured due to the failure of the goods to fulfill those representations


  • Only applies when specific representations were made to the buyer about the product feature that caused the injury
  • Statutory notice provisions
  • The claim can only arise if the feature that was the subject of the warranty causes the injury

Breach of Implied Warranty of Merchantability

  • A plaintiff may recover by showing that the defendant was a dealer in goods of that kind, sold the goods, that they were not fit for the ordinary purposes for which they were sold, and that she suffered personal injury as a result of their unfitness for that purpose
  • Allows recovery without any showing of negligence or misrepresentation by the seller


  • It can be disclaimed, if it is done clearly
  • UCC has alternative limits to who can recover
  • Requires timely notice of the breach to the seller


  • The defendant made a public misrepresentation (intentionally, recklessly, negligently, or innocently) about a material fact, the plaintiff acted in reliance, and suffered injury because the product was not as represented by the seller
  • The plaintiff may recover even if the product is not defective, as long as failure to live up to the representations led to the plaintiff’s injury


  • Must have been an inaccurate representation by the seller about the particular characteristic of the product that led to the plaintiff’s injury
  • May not support recovery by third parties such as bystanders

402A vs. Restatement (Third) Analysis of Products Liability

Some of the analysis recommended in Restatement (Third) for products liability differs from the analysis which was recommended in 402A. Although a vast majority of jurisdictions still adhere to 402A, it is important to know the distinctions between the two approaches.

1. Different test for design defect claims

402A has endorsed the consumer expectations test for most design defect claims. Here, the plaintiff alleges that the product was unreasonably dangerous for its intended use and is in a condition not reasonably contemplated by the ultimate consumer.

Restatement (Third) primarily adopts the Risk/Utility Test and also requires a plaintiff to prove a reasonable alternative design which would have reduced or eliminated the risk that injured the plaintiff. Here, the trier of fact will weigh various factors including: the likelihood the the product design will cause injury, the gravity of the danger posed, the mechanical and economic feasibility of an improved design, the financial cost of an improved design, and the adverse consequences to the product and to the consumer that would result from an alternative design.

2. Reduction/Unification of Claims

Under 402A most strict liability claims are accompanied by claims for negligence, breach of express warranty, breach of implied warranty of merchantability, and misrepresentation. Restatement (Third) advocates that a plaintiff should just make one unified claim of product defect. See Accompanying Claims to Defective Product under 402A for more information.

3. Categorization

Restatement (Third) creates three categories of product defects (manufacturing, design, and inadequate instructions or warnings). 402A does not have these categories and just has one long definition of when a product is defective.

Products Liability

The Restatement (Third) creates three categories of product defects:

1. Manufacturing Defects

2. Design Defects

3. Inadequate Instructions or Warning

Manufacturing Defects

A manufacturing defect exists when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product.

Design Defects

A design defect exists when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design, by the seller or distributor, and the omission of the alternative design renders the product not reasonably safe.

Inadequate Instructions or Warning

An inadequate instruction or warning exists when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or distributor and the omission of the instructions or warnings renders the product not reasonably safe.

Types of Strict Liability

Strict liability has three major categories:

1. Animals

2. Abnormally Dangerous Activities; and

3. Products Liability

Animals – Owned or Possessed

Under the Restatement (Third) there are three categories of animals in strict liability:

1. Livestock – the owner or possessor of livestock is subject to strict liability if the livestock intrudes upon the land of another and physical harm is caused by the intrusion

2. Abnormally Dangerous Animals

3. Wild Animals – A possessor of a wild animal is subject to strict liability to another for harm done by the animal to the other person’s body, land or chattels, even if the possessor has exercised the utmost care to confine the animal, or otherwise prevent it from doing harm

  • Note: Wild animals are animals that have not been generally domesticated

Abnormally Dangerous Activities

One who carries on an abnormally dangerous activitiy is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.

Examples of Abnormally Dangerous Activities are:

  1. Impoundments (noxious substances or liquids)
  2. Hazardous wastes
  3. The Superfund Act
  4. Lateral support
  5. Blasting and explosives
  6. Nuclear energy
  7. Other high-energy activities
  8. Utilities
  9. Fireworks
  10. Poisons
  • Note: For a plaintiff to recover, he must show that the defendant was carrying on in an abnormally dangerous activity that proximately caused harm to his person or property.

Products Liability

The Restatement (Third) states that a product is defective when, at the time of sale or distribution, the product contained a manufacturing defect, is defective in design, or is defective because of inadequate instructions or warnings.

  • Note: A plaintiff must prove that the product was defective, the defect existed when it left the defendant’s control, and that the defect actually and proximately caused his injury.