C H A P T E R XII

This chapter brings together personal injuries allegedly caused "intentionally." We focus on what the actor sought to achieve, or knew would occur, rather than on his or her motives for acting. Thus the definition of "intent" in the Restatement (Second) of Torts § 8A, requires "that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it." Note that this definition is the final point on the Restatement's continuum from negligence through recklessness to intent. Negligence is defined as "conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm" (§ 282). Recklessness involves a risk that is "substantially greater than that which is necessary to make his conduct negligent" (§ 500). Finally, in defining intent we no longer speak of risk but rather of "desire" to bring about consequences, or belief that such consequences are "substantially certain" to occur. Is that the same as saying that the consequences are "substantially certain" to occur? How can we prove what the actor "desires" or "believes"?

The long history of intentional torts has produced special rules for categories such as assault, battery, and false imprisonment. These rules reflect early procedure and the writ system but still have implications for questions of pleading and proof today, as we shall see. Beginning with false imprisonment and carrying through intentional infliction of emotional harm and government liability, we will also see how the courts have responded to distinctly contemporary injury claims by expanding the boundaries of intentional tort doctrine.

A plaintiff who can frame a case as an intentional tort may reap benefits beyond pleading and proof: contributory negligence and even contributory recklessness are not defenses to intentional misconduct, and punitive damages may be available.* Also, although liability for negligently inflicted harm may be discharged in bankruptcy, this does not apply to "willful and malicious injury." 11 U.S.C. § 523(6).**

Hill, J.--The liability of an infant for an alleged battery is presented to this court for the first time. Brian Dailey (age five years, nine months) was visiting with Naomi Garratt, an adult and a sister of the plaintiff, Ruth Garratt, likewise an adult, in the backyard of the plaintiff's home, on July 16, 1951. It is plaintiff's contention that she came out into the backyard to talk with Naomi and that, as she started to sit down in a wood and canvas lawn chair, Brian deliberately pulled it out from under her. The only one of the three persons present so testifying was Naomi Garratt. (Ruth Garratt, the plaintiff, did not testify as to how or why she fell.) The trial court, unwilling to accept this testimony, adopted instead Brian Dailey's version of what happened, and made the following findings:

"III. . . . that while Naomi Garratt and Brian Dailey were in the back yard the plaintiff, Ruth Garratt, came out of her house into the back yard. Some time subsequent thereto defendant, Brian Dailey, picked up a lightly built wood and canvas lawn chair which was then and there located in the back yard of the above described premises, moved it sideways a few feet and seated himself therein, at which time he discovered the plaintiff, Ruth Garratt, about to sit down at the place where the lawn chair had formerly been, at which time he hurriedly got up from the chair and attempted to move it toward Ruth Garratt to aid her in sitting down in the chair; that due to the defendant's small size and lack of dexterity he was unable to get the lawn chair under the plaintiff in time to prevent her from falling to the ground. That plaintiff fell to the ground and sustained a fracture of her hip, and other injuries and damages as hereinafter set forth.

"IV. That the preponderance of the evidence in this case establishes that when the defendant, Brian Dailey, moved the chair in question he did not have any wilful or unlawful purpose in doing so; that he did not have any intent to injure the plaintiff, or any intent to bring about any unauthorized or offensive contact with her person or any objects appurtenant thereto; that the circumstances which immediately preceded the fall of the plaintiff established that the defendant, Brian Dailey, did not have purpose, intent or design to perform a prank or to effect an assault and battery upon the person of the plaintiff." (Italics ours, for a purpose hereinafter indicated.)

It is conceded that Ruth Garratt's fall resulted in a fractured hip and other painful and serious injuries. To obviate the necessity of a retrial in the event this court determines that she was entitled to a judgment against Brian Dailey, the amount of her damage was found to be eleven thousand dollars. Plaintiff appeals from a judgment dismissing the action and asks for the entry of a judgment in that amount or a new trial.

The authorities generally, but with certain notable exceptions [ ], state that, when a minor has committed a tort with force, he is liable to be proceeded against as any other person would be. [ ].

In our analysis of the applicable law, we start with the basic premise that Brian, whether five or fifty‑five, must have committed some wrongful act before he could be liable for appellant's injuries.

It is urged that Brian's action in moving the chair constituted a battery. A definition (not all‑inclusive but sufficient for our purpose) of a battery is the intentional infliction of a harmful bodily contact upon another. . . .

We have in this case no question of consent or privilege. We therefore proceed to an immediate consideration of intent and its place in the law of battery. . . .

We have here the conceded volitional act of Brian, i.e., the moving of a chair. Had the plaintiff proved to the satisfaction of the trial court that Brian moved the chair while she was in the act of sitting down, Brian's action would patently have been for the purpose or with the intent of causing the plaintiff's bodily contact with the ground, and she would be entitled to a judgment against him for the resulting damages. Vosburg v. Putney [50 N.W. 403 (Wis. 1891)].

The plaintiff based her case on that theory, and the trial court held that she failed in her proof and accepted Brian's version of the facts rather than that given by the eyewitness who testified for the plaintiff. After the trial court determined that the plaintiff had not established her theory of a battery (i.e., that Brian had pulled the chair out from under the plaintiff while she was in the act of sitting down), it then became concerned with whether a battery was established under the facts as it found them to be.

A battery would be established if, in addition to plaintiff's fall, it was proved that, when Brian moved the chair, he knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been. If Brian had any of the intents which the trial court found, in the italicized portions of the findings of fact quoted above, that he did not have, he would of course have had the knowledge to which we have referred. The mere absence of any intent to injure the plaintiff or to play a prank on her or to embarrass her, or to commit an assault and battery on her would not absolve him from liability if in fact he had such knowledge. [ ] Without such knowledge, there would be nothing wrongful about Brian's act in moving the chair, and, there being no wrongful act, there would be no liability.

While a finding that Brian had no such knowledge can be inferred from the findings made, we believe that before the plaintiff's action in such a case should be dismissed there should be no question but that the trial court had passed upon that issue; hence, the case should be remanded for clarification of the findings to specifically cover the question of Brian's knowledge, because intent could be inferred therefrom. If the court finds that he had such knowledge, the necessary intent will be established and the plaintiff will be entitled to recover, even though there was no purpose to injure or embarrass the plaintiff. [ ] If Brian did not have such knowledge, there was no wrongful act by him, and the basic premise of liability on the theory of a battery was not established.

It will be noted that the law of battery as we have discussed it is the law applicable to adults, and no significance has been attached to the fact that Brian was a child less than six years of age when the alleged battery occurred. The only circumstance where Brian's age is of any consequence is in determining what he knew, and there his experience, capacity, and understanding are of course material.

1. What is it precisely that the court says Brian must "intend" in order to be held liable for a battery? Suppose he wasn't thinking about plaintiff one way or the other--he simply grabbed the nearest chair, despite the fact that she was about to sit in it, because he was eager to sit down. Would he have had the requisite intent? Recall the discussion at p. ___ supra, of the relationship between negligence and age.

On remand, the trial court found that Brian did have the necessary intent, and entered judgment for the plaintiff for $11,000. The judgment was affirmed on appeal. 49 Wash.2d 499, 304 P.2d 681 (1956).

2. Suppose Brian did not believe to a "substantial certainty" that plaintiff was about to sit down. Might he still be liable on a negligence theory? Can you construct versions of the facts that clarify the distinctions between intentional, reckless and negligent misconduct? Might Brian's age make it more difficult to establish negligence than intentional wrongdoing here? Reconsider the discussion of the reasonable person standard as applied to minors, p. 46, supra. The issue is discussed at length in Weisbart v. Flohr, 67 Cal.Rptr. 114 (App. 1968), an action based on theories of negligence and battery by a five‑year‑old plaintiff against a seven‑year‑old defendant who put out her eye with a bow‑and‑arrow. The court upheld a judgment in favor of the defendant on the negligence count, but reversed a similar judgment on the battery claim.

3. Suppose Brian did know to a "substantial certainty" that plaintiff was about to sit in the chair. Does it make sense to have a separate tort category of "intentional torts" for such cases--distinguishing them from situations in which a manufacturer knows with similar certainty that one soda bottle out of 100,000 produced will explode during use?

4. Compare the prima facie case for intentional battery with that for intentional nuisance, p. ___, supra. What justifies the Restatement position, in the latter case, that the conduct be not only intentional but also unreasonable? For the Second Restatement's sections on intent and battery, which track the views expressed in Garratt, see §§ 8A, 13-17. As already noted, § 8A defines "intent" as follows:

The word "intent" is used throughout the Restatement of this Subject to denote that the actor desires to cause consequences of his act, or that he believes that the consequences are substantially certain to result from it.

D comes up behind a person he is quite certain is his friend, and offers the traditional greeting of a slap on the back. If the other person turns out to be a stranger, has D intended to hit him? Or suppose that D, hunting in a proper area, reasonably believes that the animal crossing in front of him some distance ahead is a deer. D shoots and kills the animal only to find that it is in fact P's slender cow. Did D intend to shoot the cow?

5. In the cited case of Vosburg v. Putney, the court held that one schoolboy who kicked another in the leg was liable for a battery despite the lack of any subjective intention to do harm. Moreover, the defendant was held liable for extraordinary harm that resulted because of the exacerbation of a pre‑existing injury, the court tersely stating that "the wrongdoer is liable for all injuries resulting directly from the wrongful act, whether they could or could not have been foreseen by him." Recall the discussion of the thin‑skulled plaintiff rule, p. ___, supra. Is it appropriate to apply a thin‑skulled plaintiff rule to cases in which the defendant intended no actual harm to the plaintiff?

Vosburg has remained a great favorite of torts afficionados over the years. See its centennial celebration, including a sociolegal history of the case, Zile, Vosburg v. Putney: A Centennial Story, 1992 Wis.L.Rev. 877, and commentary by James A. Henderson (at 853), Robert L. Rabin (at 863), and J. Willard Hurst (at 875).

6. Cause‑in‑fact. On the relation of cause‑in‑fact problems to intentional torts, consider the following passage from Malone, Ruminations on Cause-In-Fact, 9 Stan.L.Rev. 60, 72-73 (1956):

Some rules of law are tremendously exacting and rest upon time‑honored moral considerations. They are safeguards for well‑established interests of others, and their mantle of protection embraces a large variety of risks. He who violates such a rule will be held responsible for any harm that can be causally associated in any plausible way with his wrongdoing. The court, for instance, will seldom hesitate to allow the jury a free range of speculation on the cause issue at the expense of an intentional wrongdoer who is charged with having physically injured another person.

Malone also suggests that in fire cases "Sound judgment may dictate, for instance, that an arsonist be held responsible for a fire contribution that has a much smaller damaging potential than could be recognized in the case of a householder whose lamp was tipped over by the wind." Can these views be justified?

7. Proximate Cause. In Baker v. Shymkiv, 451 N.E.2d 811 (Ohio 1983), the plaintiff and decedent, her husband, came home to find a trench being built across their driveway by defendant. An angry confrontation occurred. At this point plaintiff left to call the police. When she returned three minutes later she found her husband lying face down in a mud puddle while the defendants were driving away. He was pronounced dead of a heart attack shortly thereafter. The trial judge charged that although the defendants were trespassers they would not be liable for the death unless that harm could have been foreseen or reasonably anticipated by the wrongdoer. The Court of Appeals reversed a defense judgment and the Ohio Supreme Court unanimously affirmed. Quoting from an earlier case, the court reasoned that when confronted with an innocent victim and an intentional wrongdoer, it is not surprising that the interest of the victim in attaining full compensation "is placed above the interest of the wrongdoer in protecting himself against potentially speculative damage awards." That approach was supported by Restatement § 162, which provided that a trespasser was liable for any acts done or activity on the land that harms the possessor, others or property "irrespective of whether his conduct is such as would subject him to liability were he not a trespasser." Comment f provided that this rule applied "no matter how otherwise innocent such conduct may be." Accordingly, the court held that "damages caused by an intentional trespasser need not be foreseeable to be compensable." A new trial was ordered.

Should intentional wrongdoers be held to a higher standard of responsibility for extended consequences than negligent parties? See generally, Note, The Tie That Binds: Liability of Intentional Tort-Feasors for Extended Consequences, 14 Stan.L.Rev. 362 (1962). Compare Halberstam v. Welch, 705 F.2d 472 (D.C.Cir.1983), assigning tort liability to a woman whose live‑in‑companion killed someone who surprised him during a burglary. The woman had not been involved in the burglary, but was heavily involved in "laundering" activities connected with reaping profits from the burglar's stolen goods. The court discusses at length theories of civil conspiracy and aid‑and‑abetting in developing the concept of joint tort in the context of intentional harm.

8. Punitive Damages. As we discussed earlier, in intentional tort cases defendant sometimes may be responsible not only for compensatory damages but for punitive damages as well. Reconsider the discussion of punitive damages for reckless conduct, p. ___, supra. Intentional tort situations have been considered the paradigm case for award of such damages. Should a distinction be drawn between cases involving intent to injure and cases like Vosburg in which defendant intended no serious harm?

Why should a plaintiff ever receive such a windfall? A handful of states wholly reject punitive damages in civil cases, and a few limit them in amount to the plaintiff's litigation expenses including attorneys' fees. See Note, An Economic Analysis of the Plaintiff's Windfall from Punitive Damages, 105 Harv.L.Rev. 1900 (1992), analyzing the justifications for punitive damages and proposing that the portion of a punitive damages award in excess of litigation costs be allocated to the state. Punitive damages are not awarded as a matter of law but are discretionary with the trier of fact.

Is it consistent to argue that punitive damages should be permitted in minor intentional harm cases because criminal prosecutions are unlikely, and also in major tort cases such as raping a very young child? Is there less justification for punitive damages when the compensatory award will be high, as in the rape case, than when the compensatory award is likely to be small? Does a compensatory award "punish" the defendant? For comprehensive analysis of the justifications for punitive damages, see Trebilcock and Chapman, Punitive Damages: Divergence in Search of a Rationale, 40 Ala.L.Rev. 741 (1989).

9. Insurance Considerations. What good is a judgment for $11,000 against Brian? Parents are not generally liable for the torts of their children. It is true that they have a duty of due care to prevent their children from causing intentional harm or unreasonable risks to others but this applies only when the parents are on notice of the child's tendencies and know or should know that an occasion has arisen calling for their exercise of control. See Restatement, Second, § 316. Alternatively, the parents may be liable for placing a dangerous instrumentality in the hands of one too young or inexperienced to know how to handle it. Compare Weisbart v. Flohr, note 2 supra (parents not liable for injury caused by their seven‑year‑old son's shooting arrow into girl's eye), with Reida v. Lund, 96 Cal.Rptr. 102 (App. 1971)(father liable to victims of 16-year-old sniper for father's failure to use due care to keep Swedish Mauser military rifle out of son's hands). In the absence of proof that the boy was a menace (and the lack of a claim by Ruth Garratt against the parents) parental liability cannot explain the suit.

This is another area in which liability insurance has been of considerable importance. Even if the parent's homeowners' policy covers family members, however, there is still a question whether intentional torts have been excluded. In Baldinger v. Consolidated Mutual Ins. Co., 222 N.Y.S.2d 736 (App.Div. 1961), affirmed without opinion 183 N.E.2d 908 (N.Y. 1962), the policy excluded "bodily injury . . . caused intentionally." A six‑year‑old boy covered by the policy pushed the plaintiff to get her to move. She fell and broke her elbow. Relying on the maxim that an ambiguous provision should be construed against the insurer the court held that the exclusion did not apply because the "injury" was not "caused intentionally but was rather the unintended result of an intentional act." Recall Lalomia, p. ___, supra.

The issue is not limited to coverage of minors, of course. Can an insured who is legally insane commit an intentional act? In Economy Preferred Ins. Co. v. Mass, 497 N.W.2d 6 (Neb. 1993), the insured, who had shot and killed his father, claimed that he was entitled to insurance coverage despite an intentional act exclusion clause because the trial court had found that he was legally insane at the time of the incident. The appellate court disagreed, holding that even if a mentally ill insured was unable to form the criminal intent necessary for criminal liability, he may nevertheless have still intended or expected the results of the injuries he caused. Therefore, the intentional act exclusion applied, and the insurance company was not obliged to cover its insured. But see Nationwide Insurance Company v. Estate of Kollstedt, 646 N.E.2d 816 (Ohio 1995), in which the court held that an intentional act exclusion clause does not apply when the insured was mentally incapable of committing an intentional act. Insurance considerations aside, the majority rule is that a defendant’s insanity does not establish a defense to liability. See Williams v. Kearbey, 775 P.2d 670 (Kan.App. 1989), in which defendant, a minor, shot and injured two people at his junior high school. The wounded individuals brought successful battery actions. The jury found that the defendant was insane at the time of the shootings and defendant argued that because of this fact, he should not be held civilly liable for his torts. The court followed the majority rule that a defendant's insanity does not establish a defense to liability. That rule reflected a policy decision "to impose liability on an insane person rather than leaving the loss on the innocent victim."

What if the insured is acting in self‑defense? In Vermont Mutual Ins. Co. v. Singleton, 446 S.E.2d 417 (S.C.1994), the insured had acted in self‑defense and had inflicted severe eye injuries upon his attacker. The court applied a two‑prong analysis to determine if the intentional act exclusion clause would relieve the insurance company of having to cover the victim's costs under the insured's homeowner's policy. The court held that the first prong, whether the act causing the loss was intentional, was easily satisfied. The second prong, however--whether the results of the act were intended-- was not satisfied. Since the insured intended only to protect himself and not to inflict a specific injury on the victim, the intentional act exclusion clause did not apply.

Finally, when if ever should public policy concerns persuade a court to hold that reckless conduct on the part of an insured should relieve an insurance company of coverage obligations under an intentional act exclusion clause? In R.W. v. T.F., 528 N.W.2d 869 (Minn.1995), a woman sued the insured for negligently transmitting genital herpes to her. The insurance company refused to defend, claiming that the insured's intentional act exclusion clause relieved it of its coverage obligations. The court held for the insurance company, arguing that the insured's actions were "intentional as a matter of law" because the insured knew the transmission of herpes was "substantially likely to occur." In reaching its decision, the court stated that it would be contrary to public policy to "promote the abdication of personal responsibility by providing insurance coverage when an insured engages in unprotected sexual intercourse despite having knowledge that he is infected with herpes, a highly contagious and serious sexually transmitted disease."

10. Victim Compensation Statutes. The vast majority of valid intentional tort cases founder on the insolvency of the perpetrator. Statutes may provide some aid to victims of crimes from the state or local treasury, an idea that originated in Great Britain. See Note, Compensation for Victims of Crime, 33 U.Chi.L.Rev. 531 (1966); Comment, Compensation for Victims of Violent Crimes, 26 Kan.L.Rev. 227 (1978). For comparison of the British approach and a variety of American statutory strategies, see Greer, A Transatlantic Perspective on the Compensation of Crime Victims in the United States, 85 J.Crim. & Criminology 333 (1994).

California, in 1965, was the first state to enact a comprehensive victim compensation statute. Since then, 35 states have enacted some form of victim compensation program. These programs differ from one another significantly both in scope and in level of reparations. For a detailed survey of the various state compensation programs, see D. Parent, B. Auerbach, & K. Carlson, Compensating Crime Victims: A Summary of Policies and Practices (National Institute of Justice 1992). The philosophical justifications for victim compensation programs are criticized in Henderson, The Wrongs of Victim's Rights, 37 Stan.L.Rev. 937 (1985).

At the turn of the century, several states enacted so‑called mob violence statutes providing that persons whose property was damaged or destroyed in a riot might recover their losses from the city or county. The apparent goal was to encourage government officials to take steps to avert damage before it occurred. Governmental responsibility might be found more easily here than in the failure of government to prevent isolated acts of physical violence. Statutes in New York, Illinois, and California were repealed or suspended in the 1960s before any substantial harm occurred from the urban violence of that decade. See Note, Compensation for Victims of Urban Riots, 68 Colum.L.Rev. 57 (1968); Note, Municipal Liability for Riot Damage, 81 Harv.L.Rev. 653 (1968); and Note, Riot Insurance, 77 Yale L.J. 541 (1968).

11. In Garratt, the court offered two foundational observations before launching into its discussion of intent. First, the opinion defines the tort of battery, establishing the prima facie case as "the intentional infliction of a harmful bodily contact upon another." Next, the court observes that the most common defenses are not involved: "We have in this case no question of consent or privilege." The following cases discuss the related torts of assault and battery in greater detail. We then give independent consideration to false imprisonment and intentional infliction of emotional distress before turning to defenses and privileges.

[In the course of a brake inspection, plaintiff Picard became upset about the service work and contacted a local television news "troubleshooter" reporter. Shortly thereafter, when she returned for a reinspection, Picard took along a camera and photographed defendant service worker as he was inspecting the brakes. There was a dispute as to what happened next. Plaintiff testified that defendant lunged at her and spun her around; defendant denied touching her and testified that he "pointed at plaintiff and said, 'who gave you permission to take my picture?' then walked around the car to plaintiff, placed his index finger on the camera and again asked, 'who gave you permission to take my picture?' " The defendant denied grabbing plaintiff or threatening her in any way. In further testimony, which was less than entirely consistent, plaintiff and her doctor claimed permanent damage to her back as a consequence of the altercation.

At trial, plaintiff prevailed and was awarded $60,366 in compensatory damages and an additional $6,350 in punitive damages. Defendant appealed, arguing "1) that plaintiff failed to prove an assault and battery; 2) that plaintiff failed to prove that defendant's actions in fact caused the alleged harm to her; and 3) that the damage awards were grossly excessive and inappropriate as a matter of law." The supreme court vacated the award and remanded for a new trial on damages.]

The defendant contended that plaintiff failed to prove the occurrence of an assault because plaintiff was not placed in reasonable fear of imminent bodily harm. Further, defendant argued that plaintiff failed to prove a battery because the evidence failed to establish that defendant intended to inflict an unconsented touching of plaintiff. We disagree with both contentions.

Assault and battery are separate acts, usually arising from the same transaction, each having independent significance. [ ] "An assault is a physical act of a threatening nature or an offer of corporal injury which puts an individual in reasonable fear of imminent bodily harm." [ ] It is a plaintiff's apprehension of injury which renders a defendant's act compensable. [ ]; see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 10, at 43 (5th ed. 1984)("[t]he damages recoverable for [assault] are those for the plaintiff's mental disturbance, including fright, humiliation and the like, as well as any physical illness which may result from them"). This apprehension must be the type of fear normally aroused in the mind of a reasonable person. [ ]

The plaintiff testified that she was frightened by defendant's actions. A review of the attendant circumstances attests that such a reaction was reasonable. The defendant admitted approaching plaintiff, and the photograph taken that day clearly showed defendant pointing his finger at plaintiff as defendant approached her. Because plaintiff's apprehension of imminent bodily harm was reasonable at that point, plaintiff has established a prima facie case of assault.

We have defined battery as an act that was intended to cause, and in fact did cause, "an offensive contact with or unconsented touching of or trauma upon the body of another, thereby generally resulting in the consummation of the assault. . . . An intent to injure plaintiff, however, is unnecessary in a situation in which a defendant willfully sets in motion a force that in its ordinary course causes the injury." [ ]

In the instant case, defendant contended that a battery did not occur because defendant did not intend to touch or injure plaintiff. Rather, defendant argued, the evidence showed that he intended to touch plaintiff's camera, not plaintiff's person, and therefore the contact was insufficient to prove battery. With this contention we must disagree. Even if this court were to accept defendant's characterization of the incident, a battery had nonetheless occurred. The defendant failed to prove that his actions were accidental or involuntary. Therefore, defendant's offensive contact with an object attached to or identified with plaintiff's body was sufficient to constitute a battery. As noted in the comments to the Restatement (Second) Torts § 18, comment c at 31 (1965): "Unpermitted and intentional contacts with anything so connected with the body as to be customarily regarded as part of the other's person and therefore as partaking of its inviolability is actionable as an offensive contact with his person. There are some things such as clothing or a cane or, indeed, anything directly grasped by the hand which are so intimately connected with one's body as to be universally regarded as part of the person." The defendant's contact with the camera clutched in plaintiff's hand was thus sufficient to constitute a battery. We conclude, therefore, that plaintiff has proven the elements of assault and battery.

[The court next determined that the medical evidence in support of the claim for compensatory damages was inadequate and that the amount of damages awarded was excessive. In addition, the punitive damage award could not stand because "there was no proof of malice or bad faith."]

In conclusion, we deny in part and sustain in part the defendant's appeal. We affirm the judgment of the Superior Court in respect to the defendant's commission of assault and battery, but we vacate the awards of compensatory and punitive damages. We remand the case to the Superior Court for a new trial on the damages sustained by the plaintiff.

1. For an interesting early case illustrating an assault claim, see I. de S. v. W. de S., Y.B.Lib. Ass. folio 99, pl. 60 (1348) in which defendant, enraged at being told by plaintiff that the tavern was closed for the night, swung his hatchet at her as she stuck her head out of the window of the establishment. The court rejected the argument that no harm had been done, concluding that an actionable assault had occurred. The relationship between trespass claims and the later‑developing action of trespass on the case is discussed at p. __, supra, in the historical introduction to negligence in Chapter II.

2. Suppose defendant in Picard had gestured menacingly and threatened to harm plaintiff if she took a picture of him--but before she had actually done so. Would his actions have constituted an assault? Conditional threats, even if unjustifiable, were traditionally not considered assaults. An early common law case court held that the statement, "if it were not assize time, I would run this sword through you," was held not to amount to an assault because of its conditional nature. Tuberville v. Savage, 86 Eng.Rep. 684 (1669). How would the qualification for conditional statements apply here?

3. Note that the Picard court echoes Garratt in holding that an intent to injure is not required to establish a battery. What precisely was required to establish not just an assault but a battery as well in Picard?

4. Why should less than actual physical contact with plaintiff's body ever be sufficient to establish a battery? And, on the other hand, why should any physical contact suffice? In the leading case of Alcorn v. Mitchell, 63 Ill. 553 (1872), in which a disappointed litigant spat upon his adversary in the courthouse, the court allowed nominal compensatory and fairly substantial punitive damages in the subsequent action for the trespassory act. What justifications can be offered for extending battery actions beyond actual physical harm? Might a spit in the face warrant substantial compensatory damages?

5. Section 19 of the Second Restatement states that “A bodily contact is offensive if it offends a reasonable sense of personal dignity.” Consider that section’s application in Vitale v. Henchey, 24 S.W.3d 651 (Ky. 2000). The patient’s son, who held a medical power of attorney, consented by telephone that two surgeons operate on his 95-year-old mother. In fact, at the request of the first two surgeons, a third surgeon performed the surgery. From earlier conversations, the son had reason to think that the third surgeon was “too aggressive, not compassionate,”—and he testified that he would not have consented to surgery by the third surgeon. There was no showing that this substitution violated the accepted standard of care. The court, 5-2, held that such a showing was not required and upheld the battery claim against all three surgeons even though no harm from the substitution could be shown. As to damages, the court indicated that nominal damages were permissible in this situation. Beyond that, evidence that the patient was conscious would permit a recovery for the pain and suffering caused by the surgery. When defendants argued that there was no showing that this was greater than it would have been had another surgeon performed the operation, the court rejected the argument, noting simply that it found no authority to support it. The court concluded that plaintiff was entitled “to any damages resulting [from the battery].” Is that sound? Can this case be regarded as an “offensive” battery? Should the comparison be the pain and suffering from this surgery compared to the patient’s condition without surgery? The dissenters observed that this “kind of lawsuit is sometimes referred to as a ‘money hunt.’” Is that fair?

6. Once tortious conduct amounting to an assault and battery was established in Picard, is the court acting consistently when it reverses the punitive damage award because of the failure to establish "malice and bad faith?"

Martin Wishnatsky appealed a summary judgment dismissing his battery action against David W. Huey, and an order denying his motion for an altered judgment. We conclude, as a matter of law, that no battery occurred, and we affirm the judgment and the order.

On January 10, 1996, Huey, an assistant attorney general, was engaged in a conversation with attorney Peter B. Crary in Crary's office. Without knocking or announcing his entry, Wishnatsky, who performs paralegal work for Crary, attempted to enter the office. Huey pushed the door closed, thereby pushing Wishnatsky back into the hall. Wishnatsky reentered the office and Huey left.

Wishnatsky brought an action against Huey, seeking damages for battery. Huey moved for summary judgment of dismissal. The trial court granted Huey's motion and a judgment of dismissal was entered. Wishnatsky moved to alter the judgment. The trial court denied Wishnatsky's motion.

Wishnatsky appealed, contending the evidence he submitted in response to Huey's motion for summary judgment satisfies the elements of a battery claim and the trial court erred in granting Huey's motion. Wishnatsky also contends Huey is not entitled to prosecutorial or statutory immunity.

"In its original conception [battery] meant the infliction of physical injury." [ ] By the Eighteenth Century, the requirement of an actual physical injury had been eliminated:

At Nisi Prius, upon evidence in trespass for assault and battery, Holt, C.J. declared,

1. That the least touching of another in anger is a battery. 2. If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it is no battery. 3. If any of them use violence against the other, to force his way in a rude inordinate manner, it is a battery; or any struggle about the passage, to that degree as may do hurt, is a battery. [ ]

Cole v. Turner, Pasch. 3 Ann., 6 Mod. 149, 90 Eng.Rep. 958 (1704). Blackstone explained:

The least touching of another's person willfully, or in anger, is a battery; for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it: every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner.

3 William Blackstone, Commentaries *120. On the other hand, "in a crowded world, a certain amount of personal contact is inevitable, and must be accepted." [Prosser & Keeton].

The American Law Institute has balanced the interest in unwanted contacts and the inevitable contacts in a crowded world in Restatement (Second) of Torts §§ 18, 19 (1965):

(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and

(b) an offensive contact with the person of the other directly or indirectly results.

(2) An act which is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for a mere offensive contact with the other's person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

A bodily contact is offensive if it offends a reasonable sense of personal dignity.

Comment c to § 18 notes that the contact need not be "directly caused by some act of the actor" and also notes that "the essence of the plaintiff's grievance consists in the offense to the dignity involved in the unpermitted and intentional invasion of the inviolability of his person and not in any physical harm done to his body." Comment a to § 19 explains what kind of conduct offends a reasonable sense of personal dignity:

In order that a contact be offensive to a reasonable sense of personal dignity, it must be one which would offend the ordinary person and as such one not unduly sensitive as to his personal dignity. It must, therefore, be a contact which is unwarranted by the social usages prevalent at the time and place at which it is inflicted.

Huey moved for summary judgment of dismissal, because, among other things, "as a matter of law, a battery did not occur on January 10, 1996." Huey supported the motion with his affidavit stating in part:

8. That Attorney Crary and I had settled into a serious discussion about the case and had established a good rapport when the door to his office suddenly swung open without a knock. An unidentified individual carrying some papers then strode in unannounced. I had not been told that anyone would be entering Attorney Crary's office during the private meeting.... I subsequently learned that the individual's name is Martin Wishnatsky.

Wishnatsky responded to Huey's motion for summary judgment with an affidavit of Crary and with his own affidavit stating in part:

1. I am a born‑again Christian and cultivate holiness in my life. [A]s a result I am very sensitive to evil spirits and am greatly disturbed by the demonic. However, in Christ there is victory.

2. On January 9, 1996, Mr. David Huey of the North Dakota Attorney General's office, visited the ministry where I was working at 16 Broadway in Fargo, North Dakota with an ex parte court order.

3. The following morning I entered the office of Peter Crary, an attorney for whom I do paralegal work, to give him certain papers that had been requested. Mr. Crary was speaking with Mr. David Huey at the time. As I began to enter the office Mr Huey threw his body weight against the door and forced me out into the hall. I had not said a word to him. At the same time, he snarled: "You get out of here." This was very shocking and frightening to me. In all the time I have been working as an aide to Mr. Crary, I have never been physically assaulted or spoken to in a harsh and brutal manner. My blood pressure began to rise, my heart beat accelerated and I felt waves of fear in the pit of my stomach. My hands began to shake and my body to tremble. Composing myself, I reentered the office, whereupon Mr. Huey began a half‑demented tirade against me and stormed out into the hall. I looked at Mr. Crary in wonder.

We certainly agree with the Supreme Court's determination that when Wishnatsky attempted to enter the room in which Huey was conversing with Crary, "Huey apparently reacted in a rude and abrupt manner in attempting to exclude Wishnatsky from that conversation." Wishnatsky v. Huey, [560 N.W.2d 878 (N.D. 1997)]. As a matter of law, however, Huey's "rude and abrupt" conduct did not rise to the level of battery.

The evidence presented to the trial court demonstrates Wishnatsky is "unduly sensitive as to his personal dignity." Restatement (Second) of Torts § 19 cmt. a (1965). Without knocking or otherwise announcing his intentions, Wishnatsky opened the door to the office in which Huey and Crary were having a private conversation and attempted to enter. Huey closed the door opened by Wishnatsky, thereby stopping Wishnatsky's forward progress and pushing him back into the hall. The bodily contact was momentary, indirect, and incidental. Viewing the evidence in the light most favorable to Wishnatsky, and giving him the benefit of all favorable inferences which can reasonably be drawn from the evidence, we conclude Huey's conduct in response to Wishnatsky's intrusion into his private conversation with Crary, while "rude and abrupt," would not "be offensive to a reasonable sense of personal dignity." In short, an "ordinary person ... not unduly sensitive as to his personal dignity" intruding upon a private conversation in Wishnatsky's manner would not have been offended by Huey's response to the intrusion. We conclude that Huey's conduct did not constitute an offensive‑contact‑battery, as a matter of law, and the trial court did not err in granting Huey's motion for summary judgment dismissing Wishnatsky's action.

HOBERG, C.J., WILLIAM F. HODNY, Surrogate Judge, and DEBBIE G. KLEVEN, District Judge, concur.

Notes and Questions

1. Can the court’s affirmance of summary judgment be reconciled with the “balance” struck by sections 18 and 19 of the Second Restatement?

2. In Vosburg v. Putney, p. ___, supra, the court applied the thin-skulled plaintiff rule in holding defendant liable for damages exacerbated by a pre-existing injury. Is Huey a departure from the thin-skulled plaintiff rule?

3. Is there a role for implied consent here? We consider the consent defense, shortly.

*Recall Clark v. Cantrell, p. ___, supra, in which the court applied comparative fault in a case involving a reckless defendant--and reduced the compensatory but not the punitive award. Would that be appropriate for intentional torts? Traditionally, courts have not recognized comparative fault as a defense to intentional wrongdoing.

** The role of bankruptcy in tort law was clarified in Kawaauhau v. Geiger, 523 U.S. 57 (1998), in which malpractice plaintiffs sought to deny a discharge in bankruptcy to a physician who had been more than negligent in his conduct, which led to amputation of plaintiff's leg below the knee. Defendant was uninsured and, after the adverse judgment, sought protection under the bankruptcy laws. The Supreme Court unanimously held that the statute allows discharge here since the underlying conduct was at most reckless. Given the narrow words used by Congress, the defendant must intend the consequences as well as the act that led to the harm. "The word 'willful' in (a)(6) modifies the word 'injury,' indicating that nondischargeability takes a deliberate or intentional injury, not merely a deliberate act that leads to injury."

The Court also noted that section 523(a)(9), added in 1984, bars discharge for liability incurred for "death or personal injury caused by the debtor's operation of a motor vehicle if such operation was unlawful because the debtor was intoxicated from using alcohol, a drug, or another substance." This addition would not have been needed if section 523(a)(6) covered cases of recklessness.