Monthly Archives: April 2013

Moore on Intent and Battery

Apr 19, 2013 Benjamin C. Zipursky

Nancy Moore’s Intent and Consent in the Tort of Battery: Confusion and Controversy is something every Torts professor should read.  This is not only because it is interesting and well written and engages with canonical cases.  It is also because it will teach many professors to question something they thought they knew: the meaning of “intent” in the tort of battery.  While the references to Vosburg and the Restatement (Second) on battery may seem a bit old-fashioned to some, such a judgment would be ill-founded.  Many aspects of battery law are ambiguous, incoherent, vague, and contradictory; moreover, from informed consent in medical malpractice to unwanted touchings in sexual harassment to the ever-spreading role of comparative fault, it is no longer adequate to pretend that intentional tort law can reasonably be relegated to the subject of schoolboy pranks.

While Moore discusses both intent in battery and (relatedly) the interplay of intent, consent, and mistaken defendant beliefs about consent, the lion’s share of her attention goes to intent itself. Restatement (Second) § 13(a) requires a plaintiff bringing a battery claim to show that the defendant acted “intending to cause a harmful or offensive contact with the person of the other or a third person.” According to Moore, courts have disagreed over the scope of this phrase, and, in particular, over whether it is sufficient that the defendant have intended to make contact (so long as that contact does turn out to be harmful or offensive), or whether it is necessary that the defendant have intended to make contact and have intended to harm or offend the plaintiff.  She calls the former the “single intent rule” and the latter the “dual intent rule.”

The article makes claims at four levels: descriptive, interpretive, normative, and prescriptive.  The central descriptive claim of Moore’s article is that jurisdictions are split between the single intent rule and the dual intent rule.  Its central interpretive claim is that Restatement (Second) of Torts §13 is mistakenly said to represent a clear embrace of the single intent rule, and is in fact better interpreted as embracing the dual intent rule.  Moore’s normative position is that the dual intent rule of battery is more justifiable than the single intent rule.  And her central prescriptive claim is that the American Law Institute should expand the Restatement (Third) to reach battery, and clarify this matter (and others in intentional torts).  Notably, subsequent to Moore’s having written her article, the ALI has indeed decided to move forward with a Restatement (Third) of Torts that addresses intentional torts.

Unfortunate as it may be to mar the elegance of Moore’s framework, my principal comment is that neither the single intent rule nor the dual intent rule captures the core of intent in the tort of battery.  John Goldberg, Anthony Sebok, and I have offered the following account (note that adjustments for transferred intent are provided through subsequent supplementations):

Actor A is subject to liability to other person P for battery if:

1. A acts,

2. intending to cause a contact with P;

3. the contact with P that A intends is of a harmful or offensive type; and

4. A’s act causes P to suffer a contact that is harmful or offensive. ((John C.P. Goldberg, Anthony Sebok, & Benjamin C. Zipursky, Tort Law: Responsibilities and Redress 594 (3^rd ed. 2012).))

This account is not the dual intent rule, because the defendant need not have intended that the plaintiff be harmed or offended by his contact.  However, it is not the single intent rule either, because it is not sufficient that the defendant intended a contact that turned out to cause harm or offense to the plaintiff.  It is necessary that the intentional act of making contact that the defendant performed – e.g., a kicking, a shooting, a punching, a squeezing, a caressing (of a stranger) – be an act that the law treats as an instance of a type that it counts as harmful or offensive. To say that a battery is a harmful or offensive touching is not to say merely that the particular act harmed or offended the plaintiff, but that it was a kind of touching that qualifies as harmful or offensive. When the Wisconsin Supreme Court in Vosburg treated a kicking within the schoolroom as an “unlawful” act, it was categorizing a kicking as belonging to the “harmful or offensive” category. There are ways of touching others that are out of bounds, and kicking is one of them. The intent requirement is a requirement of an intent to do a harmful-or-offensive act type, on this view. I will label this an “intent-of-act-type” rule.

Moore is correct that the text of Restatement (Second) §13(a) is ambiguous, but she is mistaken about this ambiguity in at least two respects.  First, it is ambiguous among at least three interpretations: the dual intent, the single intent, and the intent-of-act-type.  Second, the ambiguity is patent, and patently calls for clarification in comments; there is not one right or preferable reading of the text of §13(a) that is presented by the text itself.  When one reads comment (c) on §13, however, it clearly rules out the dual intent rule.  In stating that “[t]he actor will be liable for battery even if he honestly but ‘erroneously believed[d] that . . . the other has, in fact, consented to [the contact],”’ comment (c) clearly rejects the proposition that there must be an intent to offend or harm the plaintiff.  It is possible, however, that the comments and text of §13 do not clearly distinguish between the single intent rule (adopted by the Utah Supreme Court in Wagner v. State, 122 P.3d 599 (Utah 2005)) and Vosburg’s intent-of-act-type rule.  In my view, however, once it becomes clear that the intent-of-act-type rule is in fact an option and that it conforms to Vosburg, there is simply no reason to select the single intent rule (with all of its paradoxical implications) in interpreting the Restatement or the common law of battery.

The intent-of-act-type interpretation yields somewhat different fault parameters than that of either the dual intent or the single intent rule.  Certainly, the man who mistakenly believes his unconsented to strokes and caresses will not offend the plaintiff is committing a battery.  It does not matter that he does not intend to offend or know that he will offend.  What matters is whether the law regards an intimate caress or stroke as the kind of act that is of a harmful or offensive type, if not consented to.  On the other hand, the defendant’s act of stroking or caressing is an act done intentionally, and so it is quite an exaggeration to call this strict liability. Conversely, a person who gently taps his classmate on the shoulder and causes a severe reaction has not committed a battery. The act type done intentionally is not of a harmful or offensive type. This notion of fault – strict liability for the intentional doing of certain kinds of invasive acts – lies at the essence of most intentional torts.

None of these observations is sufficient to answer Moore’s normative question: whether the dual intent rule should be the rule.  What I would say, however, is that scholars will benefit from Moore’s intelligence, acumen, and balance in approaching this question.

Lobbying and the Restatement of Torts

Apr 3, 2013 Keith N. Hylton

With such a title, how could a tort scholar not want to read the new working paper by Laposata, Barnes, and Glantz?  The Restatement plays a very prominent role in tort law; many courts cite its provisions.  The thought that the tobacco industry may have influenced its development is unsettling.

The authors present a fair amount of worrisome evidence of efforts by tobacco lawyers to influence the Restatement, especially the Second Restatement, under the direction of Reporter William L. Prosser.  The evidence is largely circumstantial.  Drafts of various parts appear to change after tobacco lawyers intervene.  The final draft of Restatement §402A, on products liability, includes an explicit exemption for “good tobacco.”

The authors present a strong argument, but I am reluctant to accept all of it.  They are right that the Restatement process is vulnerable to outside influence, much more so than are courts, and that this is a serious problem.  On the other hand, their most worrisome example of outside influence, Prosser’s work on Restatement Second §402A, is one that I do not find especially troubling.

First, Prosser’s work, overall, shows the highest level of concern for doctrinal accuracy that one can find in perhaps all of torts scholarship.  It would be a shame to sully his reputation in the absence of very strong evidence, which I don’t think is provided here.  The fact that tobacco lawyers attempted to lobby Prosser is not surprising – a lot of people try to lobby Restatement reporters, depending on the subject matter.  I am inclined to believe that Prosser’s final draft reflects conclusions that he had come to believe were correct – irrespective of what the tobacco lawyers were saying.  In the Restatement process, as in the legislative process, lobbying is not the same thing as writing the final product.

Another factor that makes the inference that Prosser caved in to tobacco lobbyists unpersuasive is the structure of Restatement Second §402A.  Products liability law has changed quite a bit since §402A was initially published in 1965.  Today, defective design liability is dominated by the risk-utility test.  However, Restatement Second §402A presents the “consumer expectations” test as the standard for strict products liability.  Under the §402A test, a product was defective if it failed to meet the expectations of the ordinary consumer.  By the time §402A was finalized, much information had been made available to the public on the dangers of cigarette smoking; the first cigarette label warnings appeared in 1966.  It is not obvious to me that tobacco would require condemnation under the consumer expectations test; it was viewed in the mid-1960s as a product with obvious risks.  Consumers who continued smoking after the mid-1960s mostly did so in the face of clear warnings.  It strikes me as plausible that Prosser may have concluded that “good tobacco” was a product that generally met the expectations of the consumer.  It may have taken him some time to reach that conclusion, and he may have been exposed to letters from tobacco lawyers along the way, but none of this would require us to conclude that he had been co-opted by the tobacco industry.

The authors’ general point remains.  The Restatement process is vulnerable to lobbying.  But the Restatement is not the law – it is an effort to codify common law in the form of rules.  Courts rely on the Restatement at their own risk.  If a Restatement reporter is unduly influenced by a lobbyist, or is unduly influenced by his own idealistic vision of the law, then it is up to judges to take the Restatement with a grain of salt.