Business Law and Ethics
Final Paper
When determining liability for battery, should we use the intent
to harm or the intent to touch?
Definition: According to the common law, battery is defined “any
unlawful touching of the person of another by the aggressor himself, or by
a substance put in motion by him.” Through this definition, battery is
defined “unlawful” here, apparently, battery is not only wrongful in moral
sense, but also violate the law. “Intention” is defined as “the decision to
bring about a prohibited consequence” in R. v Mohan. It means someone
has the potential purpose to do something. “Harm” is defined as”setbacks
to interests” by Joel Feinberg, who classified harms to two types: setbacks
to welfare interests and setbacks to ulterior interests. As for the “Touch”,
which is generally “considered as one of the five traditional senses” ①
Purpose: The paper will focus on discussing the di,erence between
the intent to harm and the intent to touch, and analyze which standard is
better to adopt. First, definitions of the key words “battery”, “intent”,
“harm” and “touch”. Second, some doctrines will be used to determine
the liability, such as transferred intent and three elements of battery.
Then, in an objective way to analyze and compare the both sides with
some specific cases related to the concept. Finally, according to what has
been showed hereinbefore, I’ll give my own conclusion that when
determining liability for battery, we should use the intent to harm rather
than intent to touch.
When determining the liability of battery, usually, di,erent judges
can take di,erent decision, even with the same case. This is result of the
di,erent understanding of the standard that should be taken when
choosing intent to harm or intent to touch. Then, what’s the standard
should be taken into consideration? There is no doubt it derives from the
word “battery”, as the definition implies, “battery is a criminal o,ence
involving unlawful physical contact”, if the definition is totally receivable,
here, we can clearly realize the severity of the action. Apparently, we
should tend to intent to harm rather than intent to touch in this sense.
There seems that conflict shouldn’t exist if we just consider it
literally. While, the problem is the severity doesn’t mean all the
wrongdoers have the intention to do harm, sometimes intending to touch
may cause unintended harm. It is because of di,erent understanding of
this situation; there is diversity in the verdict.
The clash between both sides will become drastic and apparent
when applying to some specific cases, which has involving the actual
benefits of both parties. To quote from the case Vosburg v. Putney, One of
the questions has been aroused here: Was Putney, the defendant liable for
the damages caused by unforeseen injuries? One day in the playground,
Putney hit slightly with his toe the shin of the right leg of the plainti,, the
pain hasn’t been felt immediately, but later the injury continued to
deteriorate. Then, the plainti, brought claims against defendant for
common law battery. There is no doubt that the defendant was in an
action for battery whose kick caused the plainti, lost the use of the
injured leg. But the problem is he didn’t have the intent to do any harm to
the plainti,, the harm was unintended, and so does the intended kick
responsible for the unintended harm? It’s because this question, the
lawsuit existed for several rounds. The supreme court of Wisconsin
rendered a verdict for the plainti,, their standard was intent to harm, and
the reason was they believe the original injury was revivified by the touch;
this kick was the exciting cause.
While, sounds from the defendant were di,erent, when face the two
standards, defendant chose the intent to touch without hesitation, he
believed that “only such damages could be recovered as the defendant
might reasonably be supposed to have contemplated as likely to result
from his kicking the plainti,.” It sounds reasonable, as bystander, we have
to say it was bad luck for Putney, because the victim who received the
unintended harm was a kind of people so called “eggshell skull”. Assume
that this kick happened to a normal person, things would be very simple.
But law doesn’t care about whether the defendant knew the fact which
was considered in moral sense②.
To decide whether someone should be liable for battery, here we
should use a theory about “Elements of the Tort of Battery”:
Under the Restatement of Torts an actor who
commits a direct or indirect act which is the legal
cause of a harmful contact with another is liable if:
1) the act is done with the intention of bringing
about a harmful or oensive contact or an
apprehension thereof to the other or a third person,
and 2) the contact is not consented to by the other
or the other’s consent thereto is procured by fraud
