Nancy Moore, Intent and Consent in the Tort of Battery: Confusion and Controversy, 61 Am. U. L. Rev. 1585 (2012).
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 (3rd 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.