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Harmful Contact:
Battery is a touching or physical contact which is generally considered harmful or offensive.

The physical contact must be willful; not reflexive, unintentional or subconscious.

There must be an intent to commit an offensive or harmful contact.

Battery is a tort. Like all torts, what we are talking about is a civil, as opposed to criminal act. Consequently, the resulting judgment, or punishment, is monetary compensation set by the court.

Battery requires the commission of a harmful act. See Carnes v. Thompson, 48 S.W.2d 903 (1932). Harmful, here, means what our society considers injurious or offensive. Basically, this harmful act involves either physical injury, such as hitting, pushing shoving etc. Here are some examples:

  1. D pushes P out of the way to get a seat on a crowded train. This is clearly Battery and is actionable. (a suit can be brought).

  2. D and P are both trying to reach a seat on a crowded train. They come into contact and D gets hurt. Since this is a normal everyday occurrence in our society, it is not actionable.

  3. Harry Houdini used to challenge any person to punch him in the stomach. Being a skilled escape artist and in tip-top shape, no one who challenged him was capable of even making him bend over. Now, D approaches Houdini without permission, and punches him in the stomach. Houdini is not hurt at all; is this actionable?
    The answer, which may surprise you, is yes. Since punching is considered a harmful act in our society, even if no physical injury was suffered by the defendant, D is liable for Battery.

  4. D kisses P while P is sleeping. P never even finds out about the kiss, suffering no distress. This action is still Battery since the act that D committed is an offensive act.

  5. D, knowing that P hates being touched on the shoulder, taps P on the shoulder. Since D knows that P has a certain hypersensitivity to what would otherwise be acceptable contact, touching P in that way may be actionable.

Battery must involve physical contact between the Defendant and the Plaintiff. The Defendant does not have to actually make physical contact with the Plaintiffs body to inflict a harmful or offensive touching. Even contact with an object held by the Defendant can constitute battery. An example would be:

D knocks a hat off P's head, pulls a pet leash out of his hands or knocks a book out of his arms. These are all harmful or offensive touching.

Likewise, the Defendant does not have to touch the Plaintiff with his own body. See Fisher v. Carrousel Motor Hotel, Inc., 424 S.W.2d 627 (Tex. 1967).

Even if he throws a projectile at him or directly causes any object to hit him, Battery has occurred. For example:

  1. D throws a ball which hits P in the face. This is clearly Battery.
  2. D blows smoke in P's face. This can be argued either way since smoke is not tangible. 

The act of Battery must be volitional. If an act is committed by the defendant while he is sleepwalking or having a seizure, no Battery has occurred since this act is not volitional. See Lobert v. Pack, 9.A.2d 365 (Pa. 1939).

Finally, the act of Battery must be committed with intent to cause a harmful act. Note that this differs from motive. Suppose the Defendant intended to kiss the Plaintiff, but his motive was not to harm. Since kissing is an offensive act, and the Defendant intended to do this act, he is liable for Battery even though his motive is innocent. This can best be explained by examples.

  1. D lightly taps P on the shoulder to get his attention. This is not Battery because D's act is considered socially acceptable contact which is not a harmful act.
  2. D wants to play a joke on P, a woman he works with. D hides behind a door and, when P walks by, D jumps out and kisses P on the cheek. If P tries to sue D, she will win. Kissing somebody without their permission is an offensive act and, in this case, the plaintiff intended to do this act. Therefore, he is liable for battery even though his motive, to play a harmless joke, is innocent. See Garratt v. Dailey, 279 P.2d 1091 (Wash. 1955).

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