Battery Flashcards
Elements of Battery
(1) Intent
(2) Physical Harm or Offense
(3) Defendant lacked consent
How is “intent” found?
Intent is inferred from the totality of the circumstances.
Hierarchy of Intent
- Intent/purpose is the harm or offense.
- Intent/purpose is the contact.
- Intent/purpose is an action that is substantially certain to cause harm or offense.
What is the intent necessary for battery?
Substantial certainty: harmful or offensive contact is a byproduct of the action (not the end or purpose at which the actor aims) the occurrence of which is not a matter of chance because it is substantially certain to occur [premised on knowledge]. It is not necessary for the actor to intend the contact’s harmfulness or offensiveness.
Policy Justification of Battery
Battery protects both physical integrity and personal dignity. Liability for harmful OR offensive contact. City of Watauga v. Gordon & Jones v. Fisher
How is consent determined for battery?
Consent is the actual (subjective) consent of the plaintiff, but it is assessed using objective criteria (based on the plaintiff’s external manifestations of intent). O’Brien v. Cunard Steamship
Medical Consent Defense for Battery
In the absence of proof to the contrary the consent “will be construed as general in nature and the surgeon may extend the operation to remedy any abnormal or diseased condition in the area of the original incision whenever he, in the exercise of his sound professional judgment, determines the correct surgical procedure dictates and requires such an extension of the operation originally contemplated. Kennedy v. Parrott
Conditional Medical Consent for Battery
Enables patients to exercise detailed control over surgical procedures. Ashcraft v. King.
Policy Considerations of Medical Consent
- The modern rule empowers “self-reliant surgeons,” but also disempowers patients
- Conditional consent, which enables patients to exercise detailed control over surgical procedures.
- Conditional consent matters because autonomy in the form of control over one’s own body matters
Continuum of Consent
- Express- “I hereby consent”
- Tacit- inferred from conduct
- Implied- law assumes consent where it would be otherwise given.
Consent to Enterprise
Consent can be given through participation in an enterprise that encompasses harmful or offensive contact (such as sports or combat). Markley v. Whitman & McAdams v. Windham
Consent to Illegal Acts Restatement 892(c)
Restatement 892(c)- Consent is effective to bar recovery although the conduct consented to is a crime unless the conduct is made criminal to protect a certain class of persons irrespective of their consent, and the consenting party is a member of the class. Toelis v. Moscatelli & Elkington v. Foust.
Wrongfully Procured Consent
Restatement 892B - Consent is effective unless the person consenting is induced to consent by a substantial mistake concerning the nature of the invasion of his interests or the extent of the harm to be expected from it and the mistake is known to the other or induced by the other’s misrepresentation. Kathleen K v. Robert B. & McPherson v. McPherson.
Consent cannot be procured by duress
Self-Defense to Battery
An initial victim can use force proportional to the force of the original aggressor, sufficient to repel the attack. This will be assessed by how much force reasonably appeared necessary in light of all circumstances. Fragulia v. Sala.
Continuum of Subjectivity for Self-Defense
- Objective hindsight- viewed objectively in hindsight
- Objective reasonableness- viewed in light of all the circumstances (This is the standard)
- Variable objective- viewed with the specific attributes of the plaintiff and defendant
- Subjective- viewed based on what the defender subjectively believed