Intent and Consent in the Tort of Battery: Confusion and Controversy

Much of contemporary torts scholarship has been devoted to determining who should bear the costs of unintended injury, that is, whether and when defendants should be strictly liable for the harm caused by their activities, as opposed to limiting plaintiffs to recovery when they can prove that the defendant's conduct was negligent. Comparatively little scholarship has explored the appropriate distinction between the intentional torts and the non-intentional torts, such as negligence or strict liability. Recently, torts scholars have begun to explore some interesting and unresolved questions surrounding the intentional torts, particularly battery, stemming in part from the completion of various stages of the Restatement (Third) of Torts and the current position of the ALI that it will not attempt a restatement of the non-economic intentional torts that were addressed in great detail in the Restatement (Second) on the grounds that intentional tort doctrine is clear and that the Restatement (Second) provisions have been widely adopted.This Article joins the work of several torts scholars who have recently questioned the clarity of intentional tort law doctrine. These scholars have focused on the ambiguity of the Restatement (Second) provisions with respect to the intent to cause a harmful or offensive bodily contact, that is, whether these provisions require both intent to cause bodily contact and intent to cause harm or offense (dual intent) or whether it is sufficient that the defendant intends a bodily contact that turns out to be either harmful or offensive (single intent). Some of these scholars have also suggested that the essence of battery is not the intent to cause a harmful or offensive contact, but rather the intent to cause an unpermitted contact.This Article demonstrates that the current confusion and controversy over battery law doctrine is far more extensive than even these recent torts scholars have demonstrated. It extends beyond the element of intent and includes uncertainty concerning the role of the plaintiff's lack of actual or apparent consent-that is, whether consent is an affirmative defense or whether lack of consent is an element of the plaintiff's prima facie case-and the relationship between intent and lack of consent. Moreover, this confusion and controversy is reflected not only in modern battery court opinions, but also in the cursory and contradictory treatment given to battery law in most torts casebooks and treatises. Finally, despite the ALI's assumption that the Restatement (Second) provisions have been widely adopted, there are many jurisdictions where courts are formulating battery doctrine using terminology that departs significantly from the Restatement (Second) provisions.INTRODUCTIONMuch of contemporary torts law scholarship has been devoted to determining who should bear the costs of unintended injury, that is, whether and when defendants should be strictly liable for the harm caused by their activities, as opposed to limiting plaintiffs to recovery when they can prove that the defendant's conduct was negligent.1 Comparatively little scholarship has explored the appropriate distinction between the intentional torts, such as battery, assault, and false imprisonment, and the non-intentional torts, such as the negligent infliction of physical or emotional harm and strict liability for defective products and abnormally dangerous activities. Recently, however, torts scholars have begun to explore some interesting and unresolved questions surrounding the intentional torts, particularly battery. These inquiries stem, at least in part, from the completion of various stages of the Restatement (Third) of Torts2 (Third Restatement) and the current position of the American Law Institute (ALI) that it will not attempt a new Restatement of the non-economic intentional torts.3 The ALI's position rests on the ground that these torts were addressed in great detail in the Restatement (Second) of Torts4 (Second Restatement) and that the Second Restatement "remains largely authoritative in explaining the details of the specific [intentional] torts . …