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 § 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.



McCann v. Wal-Mart Stores, Inc. – 210 F.3d 51 (1st Cir. 2000)

Case Name: McCann v. Wal-Mart Stores, Inc.
Plaintiff/Appellee: Debra McCann and her two children
Defendant/Appellant: Wal-Mart Stores, Inc.
Citation: 210 F.3d 51 (1st Cir. 2000)

Issue: Under Maine law, is the defendant liable for false imprisonment when it told the plaintiffs they must remain in the store until the police arrived.

Key Facts: As the plaintiffs were leaving Wal-Mart following a purchase, they were stopped by Wal-Mart employees who stated that the plaintiff’s child had previously stolen from the store and was not allowed in the store.  The plaintiff protested that they were mistaken but the employees insisted and told her that the police were being called and she “had to go with her.” The plaintiffs were told to remain by the store’s exit while they were supposedly waiting on the police. Only a security guard was summoned and when she arrived she testified that the child was not the shoplifter. The entire process lasted close to one hour.

Procedural History: The jury awarded the plaintiff $20,000 in compensatory damages for false imprisonment. The defendant appealed.

Holding: The defendant’s employees did false imprison the plaintiff because they intentionally confined the plaintiff within boundaries.

Rule of Law: False imprisonment occurs when a person confines another intentionally without lawful privilege and against his consent within a limited area for any appreciable time, however short.

Reasoning: Wal-Mart asserted that under Maine law, the jury had to find “actual physical restraint,” which it took from a case in 1915 because Maine’s highest court did not have a complete definition of false imprisonment. Although the defendant did not touch the plaintiff, the directions to the defendant, the reference to the police, and the continued presence of Wal-Mart employees were enough to induce reasonable people to believe either that they would be restrained physically if they sought to leave, or that the store was claiming lawful authority to confine them until the police arrived, or both.

Judgment: The appellate court upheld the trial court’s decision. The jury did not have to find actual physical restraint.

Cullison v. Medley – 570 N.E.2d 27 (Ind. 1991)

Case Name: Cullison v. Medley
Plaintiff/Appellant: Dan R. Cullison
Appellees/Defendant: The Medleys
Citation:  570 N.E.2d 27 (Ind. 1991)

Issue: Whether the defendants committed an assault against the plaintiff when they surrounded him in his trailer, had a holstered gun, and threatened him with bodily harm.

Key Facts: The plaintiff was approached in his living room by the five uninvited defendants. One of the defendants had a revolver in a holster strapped to his thigh. He was berated and was called a “pervert” and “sick.” The defendant never withdrew the gun from the holster but “kept grabbing at it with his hand, like he was going to take it out” and the plaintiff thought he was going to be shot by the defendant. As a result of the incidence, the plaintiff suffered chest pains and feared that he was having a heart attack. Additional instances occurred in which the plaintiff had more reason to believe he was in danger including that he learned one of the defendants had shot a man in the past.

Procedural History: The plaintiff sued for a number of torts, including assault. The trial court granted summary judgment on all claims. The Court of Appeals decided that it was not assault, because the defendant never removed his gun from the holster so his threat only constituted conditional language which did not express any present intent to harm. Plaintiff appealed.

Holding: The facts alleged by the plaintiff could entitle him to recover for an assault against the defendants as a jury could reasonably conclude that the defendants intended to frighten the plaintiff.

Rule of Law: The right to be free from the apprehension of imminent harm or offensive contact is protected by the tort of assault. An assault constitutes “a touching of the mind, if not the body.”

Reasoning: The plaintiff testified that he thought the defendant was going to shot him. Apprehension in the context of assault does not mean fear, but rather an awareness of imminent touching that would be a battery if completed. The plaintiff may have had an awareness of this imminent danger during his various encounters with the defendant.

Judgment: The case was remanded to the lower court to determine whether the plaintiff’s apprehension of being shot or otherwise injured was one which would normally be aroused in the mind of a reasonable person.

White v. Muniz – 999 P.2d 814 (Colo. 2000)

Case Name: White v. Muniz
Citation: 999 P.2d 814 (Colo. 2000)

Key Facts: An elderly woman, Everly, who lives in an assisted living facility hits Muniz, a shift supervisor, while she is attempting to change her adult diaper. Everly was diagnosed with progressive dementia, loss of memory, impulse control and judgment, and Alzheimers. Muniz filed a complaint against Everly and White, Everly’s granddaughter, for assault and battery.

Issue: Whether an intentional tort requires some proof that the tortfeasor not only intended to contact another person, but also intended that the contact be harmful or offensive to the other person.

Holding: Colorado requires dual intent so they rejected the arguments of Muniz and affirmed the trial court. It was proper for the trial court to instruct the jury that Everly “must have appreciated the offensiveness of her conduct”

Snyder v. Turk – 627 N.E. 2d 1053 (Ohio Ct. App. 1993)

Case Name: Snyder v Turk
Plaintiff/Appellant: Snyder
Defendant/Appellee: Dr. Turk
Citation: 627 N.E. 2d 1053 (Ohio Ct. App. 1993)

Did Dr. Turk intend to commit an offensive contact, and in turn commit battery, when he grabbed the plaintiff’s shoulder, pulled her face toward the surgical opening, and exchanged demeaning words?

Key Facts: Dr. Turk was performing a gall bladder surgery which did not go well.  The defendant was frustrated with the operation itself and the plaintiff, who was a scrub nurse in the operating room. The defendant became exasperated because the plaintiff was making mistakes. The defendant 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 instruments.”

Procedural History: The trial court ruled that no battery was committed because there was an absence of evidence that he intended to inflict personal injury. Plaintiff appealed.

Holding: Dr. Turk committed an offensive contact and, in turn, battery.

Reasoning: Using a reasonable-minds test, we can conclude that Dr. Turk intended to commit an offensive contact. Ask: “Did Dr. Turk’s action constitute an offensive contact to a reasonable person?”

Judgment: The first assignment of error was sustained.

Mullins v Parkview Hospital, Inc.

Case Name: Mullins v Parkview Hospital, Inc.
Plaintiff: Ruth Mullins
Defendant: Parkview Hospital, LeRea VanHoey, the anesthesiologist
Issue: Did VanHoey commit a battery as she had no reason to suspect that Mullins had insisted on modifying the standard consent form and that she could not rely on her preceptor’s direction and the doctor’s authority?

Key Facts: Ruth Mullins told her gynecologist that she wanted privacy during the surgery (writing contract). Once Mullins was unconscious, the anesthesiologist permitted an EMT student, VanHoey, to practice intubation on the plaintiff. This resulted in the laceration of Mullins’ esophagus.

Procedural History: The lower court granted summary judgment for all defendants on all counts but the Court of Appeals held that Mullins had an actionable battery claim against VanHoey, the gynecologist, the anesthesiologist and both doctors’ practices. VanHoey appealed.

Holding: VanHoey did not commit a battery as her actions did not satisfy all of the elements required to show battery. There is no evidence to show that VanHoey intended to cause a harmful or offensive contact with the plaintiff.

Judgment: VanHoey was entitled to summary judgment on the battery claim. The high court affirmed the trial court’s decision and did not agree with the Court of Appeals.

Reasoning: VanHoey may have “touched Mrs. Mullins in a harmful and offensive manner without permission; however, this characterization does not satisfy all the elements required to show battery. The Mullinses must show that VanHoey intended to cause a harmful or offensive contact with Mullins.
VanHoey did not intend to cause a contact and also did not know with substantially certainty that her action would cause a harmful contact.

Cohen v Smith

Case Name: Cohen v Smith
Plaintiff/Appellant: Cohen
Defendant/Appellee: Smith

Issue:  Whether the defendant committed a battery when he observed and touched the plaintiff’s naked body.

Key Facts: Patricia Cohen was admitted to the hospital to deliver her baby. Cohen was informed that it would be necessary for her to have a cesarean section. Cohen informed her physician, who informed the hospital staff, that due to her religious beliefs, Cohen could not be seen unclothed by a male. Cohen’s doctor assured her husband that their religious convictions would be respected. During the c-section, Smith, a male nurse, allegedly observed and touched Cohen’s naked body.

Procedural History: The trial court granted the defendants’ motions to dismiss.

Holding: The appellate court found that the trial court erred in dismissing both the battery and the intentional infliction of emotional distress counts.

Reasoning: 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. Taking this into account, the defendant may have committed a battery by committing an offensive contact with the plaintiff. The result of the defendant’s intentional contact resulted in offending a reasonable sense of personal dignity by violating the plaintiff’s religious beliefs.

Garratt v Dailey – Case Brief

Case Name: Garratt v Dailey
Plaintiff/Appellant: Ruth Garratt
Defendant/Appellee: Brian Dailey

Key Facts: Brian Daily, a five year old, was visiting the home of Ruth Garratt. Garratt contends that during the visit, Dailey deliberately pulled out a chair from under her as she started to sit down. Garratt fell to the ground and sustained a fracture of her hip and other injuries. There is a dispute in the facts, as Dailey claims that once he discovered Garratt was about to sit, he attempted to move the chair back under her.
The preponderance of the evidence in this case established that when Garratt moved the chair, he did not have any willful or unlawful purpose and that he did not have any intent to injure the plaintiff, or any intent to bring about unauthorized or offensive contact with her person.

Procedural History: The trial court stated that Garratt failed in her proof of the prima facie elements of battery and accepted Dailey’s version of the story and did not award Garratt damages. In other words, the court determined that the plaintiff had not established her theory of a battery.

Issue: Whether Dailey had the requisite intent to commit a battery when he pulled out the chair from under Garratt.

Holding: A battery would be established if it was proved that when Dailey moved the chair he knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been.

Reasoning: Dailey, whether five or fifty-five, must have committed some wrongful act before he could be liable for appellant’s injuries. However, clarification should be conducted to cover the question of Dailey’s knowledge, because intent could be inferred from his knowledge.

Judgment: The appellate court remanded the case back to the trial court to discover whether Dailey knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been.

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.