Battery (tort) - Contact Required

Contact Required

Battery is a form of trespass to the person and as such no actual damage (e.g. injury) needs to be proved. Only proof of contact (with the appropriate level of intention or negligence) needs to be made. If there is an attempted battery, but no actual contact, that may constitute a tort of assault.

In the United States, the common law requires the contact for battery be "harmful or offensive". The offensiveness is measured against a reasonable person standard. Looking at a contact objectively, as a reasonable person would see it, would this contact be offensive? Thus, a hypersensitive person would fail on a battery action if jostled by fellow passengers on a subway, as this contact is expected in normal society and a reasonable person would not find it offensive. Harmful is defined by any physical damage to the body.

Battery need not require body-to-body contact. Touching an object "intimately connected" to a person (such as an object he or she is holding) can also be battery. Furthermore, a contact may constitute a battery even if there is a delay between the defendant's act and the contact to the plaintiff's injury. For example, where a person who digs a pit with the intent that another will fall into it later, or where a person who mixes something offensive in food that he knows another will eat, has committed a battery against that other when the other does in fact fall into the pit or eats the offensive matter.

Because courts have recognized a cause of action for battery in the absence of body-to-body contact, the outer limits of the tort can often be hard to define. The Pennsylvania Superior Court attempted to provide some guidance in this regard in Herr v. Booten by stressing the importance of the concept of one's personal dignity. In that case, college students purchased and provided their friend with alcohol on the eve of his twenty-first birthday. After drinking nearly an entire bottle of Jack Daniels whiskey, the underage man died of acute ethanol poisoning. Reversing the decision of the trial court, the Pennsylvania Superior Court held that supplying a minor with alcoholic beverages, while certainly constituting a negligent act, did not rise to the level of a battery. In the words of Judge Montemuro, supplying a person with alcohol "is not an act which impinges upon that individual's sense of physical dignity or inviolability."