is this a battery?

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introversional
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Re: is this a battery?

Postby introversional » Sun Sep 18, 2011 12:37 am

kblueboi wrote:
introversional wrote:What if you intentionally rolled a bowling ball into traffic, a driver swerved to avoid it, hits a guy standing at the bus stop, and he dies.

Ok, say you intentionally "rolled" a blind guy into traffic with your directions... and the driver swerves, hits a tree, and dies.

There's a lot that can be done with the term "transfer" here, not just transferred intent. I'm sure a judge would get pretty creative with it in a case like this.


well that's what i've been confused about this entire time. in the first hypo you caused the act by physically rolling the ball ...

in the second scenario, you cauesd the act by speaking ... physical contact resulted, but your initial act was not a physical one ...



I think this is pretty much the same question as whether or not it's a battery of someone slaps the books out of your hand. The directions in your hypo, although aren't touching the blind guy directly, are definitely "touching/guiding" him in another harmful sense...and the guy would be liable for the battery just the same. (imo)

delusional
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Re: is this a battery?

Postby delusional » Sun Sep 18, 2011 12:39 am

introversional wrote:
kblueboi wrote:
introversional wrote:What if you intentionally rolled a bowling ball into traffic, a driver swerved to avoid it, hits a guy standing at the bus stop, and he dies.

Ok, say you intentionally "rolled" a blind guy into traffic with your directions... and the driver swerves, hits a tree, and dies.

There's a lot that can be done with the term "transfer" here, not just transferred intent. I'm sure a judge would get pretty creative with it in a case like this.


well that's what i've been confused about this entire time. in the first hypo you caused the act by physically rolling the ball ...

in the second scenario, you cauesd the act by speaking ... physical contact resulted, but your initial act was not a physical one ...



I think this is pretty much the same question as whether or not it's a battery of someone slaps the books out of your hand. The directions in your hypo, although aren't touching the blind guy directly, are definitely "touching/guiding" him in another harmful sense...and the guy would be liable for the battery just the same. (imo)

There are cases that make it clear that contact with something connected to a person is battery. I don't think this is analogous, although I do think that it's also battery.

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PDaddy
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Re: is this a battery?

Postby PDaddy » Sun Sep 18, 2011 12:40 am

bravos89 wrote:Direct physical contact is not necessary for battery. See Garratt v. Dailey.

I believe both those cases would be construed as battery.


No, but you do have to touch either directly or with an object under your control, correct? The automobiles are not in the offender's control, but the condition of the blind man presents unique circumstances. Maybe the elements of "touching" or "touching with an object under the offender's control", are obviated and thus rendered moot by the man's blindness. Interesting question...

Intentionally throwing a baseball at someone (outside of the context of a game) is battery because the ball is under the thrower's control. That would be both assault and battery.

In the blind man case, battery should be the least of one's worries. Purposely directing a blind person into traffic would be assault or even attempted murder. There is behavior with "intent" to "cause physical harm or reasonable fear of imminent harm" (that's assault)...and, if the man is physically injured, "resulting in bodily injury".

If those injuries are severe enough and there is reasonable time to premeditate the act, I would charge the offender with the entire truck-load: attempted murder!
Last edited by PDaddy on Sun Sep 18, 2011 12:45 am, edited 1 time in total.

delusional
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Re: is this a battery?

Postby delusional » Sun Sep 18, 2011 12:44 am

PDaddy wrote:
bravos89 wrote:Direct physical contact is not necessary for battery. See Garratt v. Dailey.

I believe both those cases would be construed as battery.


No, but you do have to touch either directly or with an object under your control, correct? The automobiles are not in the offender's control, but the condition of the blind man presents unique circumstances. Maybe the elements of "touching" or "touching with an object under the offender's control", can be obviated by the man's blindness.

Intentionally throwing a baseball at someone (outside of the context of a game) is battery because the ball is under the thrower's control. That would be both assault and battery.

In the blind man case, battery would be the least of one's worries. Purposely directing a blind person into traffic could be assault or even attempted murder. There is "intent" to cause harm or reasonable fear of imminent harm (that's assault)...and, if the man is physically injured, "resulting in bodily injury".

If those injuries are severe enough and there is reasonable time to premeditate the act, I would charge the offender with the entire truck-load: attempted murder!

Why is battery less of a worry than assault? If the man didn't know there were cars coming, is it assault? Attempted murder is a criminal complaint; is it a tort?

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PDaddy
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Re: is this a battery?

Postby PDaddy » Sun Sep 18, 2011 12:54 am

delusional wrote:
PDaddy wrote:
bravos89 wrote:Direct physical contact is not necessary for battery. See Garratt v. Dailey.

I believe both those cases would be construed as battery.


No, but you do have to touch either directly or with an object under your control, correct? The automobiles are not in the offender's control, but the condition of the blind man presents unique circumstances. Maybe the elements of "touching" or "touching with an object under the offender's control", can be obviated by the man's blindness.

Intentionally throwing a baseball at someone (outside of the context of a game) is battery because the ball is under the thrower's control. That would be both assault and battery.

In the blind man case, battery would be the least of one's worries. Purposely directing a blind person into traffic could be assault or even attempted murder. There is "intent" to cause harm or reasonable fear of imminent harm (that's assault)...and, if the man is physically injured, "resulting in bodily injury".

If those injuries are severe enough and there is reasonable time to premeditate the act, I would charge the offender with the entire truck-load: attempted murder!


Why is battery less of a worry than assault? If the man didn't know there were cars coming, is it assault? Attempted murder is a criminal complaint; is it a tort?


You are right about murder being criminal. I was not speaking strictly in terms of torts.

However, "wrongful death" is a tort that can be pursued if the blind man dies. I only said battery was less of a worry than assault because battery would seem to be more difficult to prove. Nevertheless, assault is a tort, with as many or more teeth as battery in your blind man scenario. I haven't studied torts in a while, but it would seem to me that battery would be neither the sexiest nor most available civil charge.

Remember, in assault the offender must (1) attempt to cause physical harm or (2) cause fear of imminent harm. For example, many people don't know that screaming at someone and threatening their life is an assault. Either one is sufficient, and only one or the other is needed. Assault would be easier to prove than battery because the blind man's lack of awareness could conceivably be be irrelevant, yet his awareness would make the case that much stronger against the offender.
Last edited by PDaddy on Sun Sep 18, 2011 1:04 am, edited 2 times in total.

kblueboi
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Re: is this a battery?

Postby kblueboi » Sun Sep 18, 2011 12:55 am

PDaddy wrote:
bravos89 wrote:Direct physical contact is not necessary for battery. See Garratt v. Dailey.

I believe both those cases would be construed as battery.


No, but you do have to touch either directly or with an object under your control, correct? The automobiles are not in the offender's control, but the condition of the blind man presents unique circumstances. Maybe the elements of "touching" or "touching with an object under the offender's control", are obviated and thus rendered moot by the man's blindness. Interesting question...

Intentionally throwing a baseball at someone (outside of the context of a game) is battery because the ball is under the thrower's control. That would be both assault and battery.

In the blind man case, battery should be the least of one's worries. Purposely directing a blind person into traffic would be assault or even attempted murder. There is behavior with "intent" to "cause physical harm or reasonable fear of imminent harm" (that's assault)...and, if the man is physically injured, "resulting in bodily injury".

If those injuries are severe enough and there is reasonable time to premeditate the act, I would charge the offender with the entire truck-load: attempted murder!


according to the second resatement, the defendant must act, her act must be intentional, the act must cause a contact with the victim, and teh intended contact must be either harmful or offensive:

"the act must cause a contact with the victim"

so ...

punching somebody in the face

the act is punching and the fist hitting the face is contact

throwing a baseball at somebody

the act is throwing and the baseball hitting the person is contact

tying your friends shoelaces together

the act is tying and him falling becaues his shoes are tied together is the contact

directing a blind man into oncoming traffic

the act is talking and the contact is him getting run over by a truck

i guess this makes sense when you look at it this way

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PDaddy
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Re: is this a battery?

Postby PDaddy » Sun Sep 18, 2011 1:02 am

Yes. You have it now. You can commit battery indirectly by use of an object under yoyur control. Let me ask you a question. If you purposely walk over to someone and fart in their face, is that not battery? How about blowing cigarette smoke in another's face? Isn't that battery? Think about the ridiculous scenarios...they aren't all that ridiculous when you start to think about the law and what it allows for.

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introversional
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Re: is this a battery?

Postby introversional » Sun Sep 18, 2011 1:03 am

PDaddy wrote:Yes. You have it now. You can commit battery indirectly by use of an object under yoyur control. Let me ask you a question. If you purposely walk over to someone and fart in their face, is that not battery? How about blowing cigarette smoke in another's face? Isn't that battery? Think about the ridiculous scenarios...they aren't all that ridiculous when you start to think about the law and what it allows for.


I'd say the fart is more of an assault.

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PDaddy
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Re: is this a battery?

Postby PDaddy » Sun Sep 18, 2011 1:10 am

introversional wrote:
PDaddy wrote:Yes. You have it now. You can commit battery indirectly by use of an object under yoyur control. Let me ask you a question. If you purposely walk over to someone and fart in their face, is that not battery? How about blowing cigarette smoke in another's face? Isn't that battery? Think about the ridiculous scenarios...they aren't all that ridiculous when you start to think about the law and what it allows for.


I'd say the fart is more of an assault.


No consideration for the widely known effects of second-hand smoke or the typical discomfort it causes non-smokers and, in many cases...smokers? Wouldn't a smoker have a reasonable expectation that the smoke would cause that discomfort?

What if the victim in the cigarette case has Asthma or Emphysema? An offender need not know the special circumstances of the victim to be charged with a crime against him. Proving the intent to touch or cause harm does not require that an offender know "how much harm" is potentially caused.

Besides, aren't the elements of battery (1) Touching that is (2) unprivileged and which (3) causes harm of emotional offense?

If you kiss a girl in her sleep and she learns about it upon waking up, isn't that battery?

Or try this scenario: You go in for an operation on your left ear, signing a consent form for the doctor to operate on it. During the operation, the doctor checks out your right ear and, although there is no risk of hearing loss or life, decides to operate on the right ear because he sees a problem that can be immediately corrected. You wake up and, upon "hearing" about the additional work done, become furious. Do you have a claim for battery?
Last edited by PDaddy on Sun Sep 18, 2011 1:17 am, edited 1 time in total.

kblueboi
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Re: is this a battery?

Postby kblueboi » Sun Sep 18, 2011 1:17 am

PDaddy wrote:Yes. You have it now. You can commit battery indirectly by use of an object under yoyur control. Let me ask you a question. If you purposely walk over to someone and fart in their face, is that not battery? How about blowing cigarette smoke in another's face? Isn't that battery? Think about the ridiculous scenarios...they aren't all that ridiculous when you start to think about the law and what it allows for.



in the farting scenario, you certainly are intending to cause an offense, but i don't think the courts recognize air molecules as contact. same in the smoking scenario. so i don't think either of them are batteries.

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Re: is this a battery?

Postby kblueboi » Sun Sep 18, 2011 1:23 am

PDaddy wrote:
introversional wrote:
PDaddy wrote:Yes. You have it now. You can commit battery indirectly by use of an object under yoyur control. Let me ask you a question. If you purposely walk over to someone and fart in their face, is that not battery? How about blowing cigarette smoke in another's face? Isn't that battery? Think about the ridiculous scenarios...they aren't all that ridiculous when you start to think about the law and what it allows for.


I'd say the fart is more of an assault.


No consideration for the widely known effects of second-hand smoke or the typical discomfort it causes non-smokers and, in many cases...smokers? Wouldn't a smoker have a reasonable expectation that the smoke would cause that discomfort?

What if the victim in the cigarette case has Asthma or Emphysema? An offender need not know the special circumstances of the victim to be charged with a crime against him. Proving the intent to touch or cause harm does not require that an offender know "how much harm" is potentially caused.

Besides, aren't the elements of battery (1) Touching that is (2) unprivileged and which (3) causes harm of emotional offense?

If you kiss a girl in her sleep and she learns about it upon waking up, isn't that battery?

Or try this scenario: You go in for an operation on your left ear, signing a consent form for the doctor to operate on it. During the operation, the doctor checks out your right ear and, although there is no risk of hearing loss or life, decides to operate on the right ear because he sees a problem that can be immediately corrected. You wake up and, upon "hearing" about the additional work done, become furious. Do you have a claim for battery?


if you kiss a girl in her sleep, that is most certainly a battery.

you intended to act and it was intentional ... the kissing caused contact and a reasonable person would be offended if kissed while sleeping.

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PDaddy
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Re: is this a battery?

Postby PDaddy » Sun Sep 18, 2011 1:23 am

kblueboi wrote:
PDaddy wrote:Yes. You have it now. You can commit battery indirectly by use of an object under yoyur control. Let me ask you a question. If you purposely walk over to someone and fart in their face, is that not battery? How about blowing cigarette smoke in another's face? Isn't that battery? Think about the ridiculous scenarios...they aren't all that ridiculous when you start to think about the law and what it allows for.


in the farting scenario, you certainly are intending to cause an offense, but i don't think the courts recognize air molecules as contact. same in the smoking scenario. so i don't think either of them are batteries.


Rethink that a bit more. The exhaled smoke is under the offender's control, just like the air coming out of the ass in the fart scenario. And the smoke is blown into the face. What is the offender's intended outcome? And if he gets it, but the victim is harmed or offended, why would that not be battery? One problem many people run into when they study torts is that they think in terms of accepted norms...folkways. Nearly every one of us has threatened someone, so we don't like to think of threatening someone as an assault, but a verbal threat to harm is, in fact, an assault.

Personalizing the fart and cigerette smoke scenarios can be a mistake, as well. We cannot think in terms of which one offends us more, we have to think from a strict elemental perspective. Do that, and you'll get an A+ in torts.

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Re: is this a battery?

Postby kblueboi » Sun Sep 18, 2011 1:53 am

PDaddy wrote:
kblueboi wrote:
PDaddy wrote:Yes. You have it now. You can commit battery indirectly by use of an object under yoyur control. Let me ask you a question. If you purposely walk over to someone and fart in their face, is that not battery? How about blowing cigarette smoke in another's face? Isn't that battery? Think about the ridiculous scenarios...they aren't all that ridiculous when you start to think about the law and what it allows for.


in the farting scenario, you certainly are intending to cause an offense, but i don't think the courts recognize air molecules as contact. same in the smoking scenario. so i don't think either of them are batteries.


Rethink that a bit more. The exhaled smoke is under the offender's control, just like the air coming out of the ass in the fart scenario. And the smoke is blown into the face. What is the offender's intended outcome? And if he gets it, but the victim is harmed or offended, why would that not be battery? One problem many people run into when they study torts is that they think in terms of accepted norms...folkways. Nearly every one of us has threatened someone, so we don't like to think of threatening someone as an assault, but a verbal threat to harm is, in fact, an assault.

Personalizing the fart and cigerette smoke scenarios can be a mistake, as well. We cannot think in terms of which one offends us more, we have to think from a strict elemental perspective. Do that, and you'll get an A+ in torts.


i'm pretty sure there has to be contact for it to be battery ... w/o it, then cursing somebody off could be a battery since that person was offended.

i think the blowing smoke and farting could only be batteries if the court ruled that the smoking particles and odor particles constituted contact.

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kalvano
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Re: is this a battery?

Postby kalvano » Sun Sep 18, 2011 11:06 am

Courts have already found that secondhand smoke can constitute battery.

delusional
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Re: is this a battery?

Postby delusional » Sun Sep 18, 2011 9:16 pm

kalvano wrote:Courts have already found that secondhand smoke can constitute battery.

http://www.casebriefs.com/blog/law/tort ... nications/

target
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Re: is this a battery?

Postby target » Sun Sep 18, 2011 9:36 pm

delusional wrote:
kalvano wrote:Courts have already found that secondhand smoke can constitute battery.

http://www.casebriefs.com/blog/law/tort ... nications/


This varies by jurisdiction. See SHAW v. BROWN & WILLIAMSON TOBACCO CORP. 973 F.Supp. 539. (Sorry, I couldn't find link to a casebrief).

delusional
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Re: is this a battery?

Postby delusional » Sun Sep 18, 2011 10:01 pm

target wrote:
delusional wrote:
kalvano wrote:Courts have already found that secondhand smoke can constitute battery.

http://www.casebriefs.com/blog/law/tort ... nications/


This varies by jurisdiction. See SHAW v. BROWN & WILLIAMSON TOBACCO CORP. 973 F.Supp. 539. (Sorry, I couldn't find link to a casebrief).

The only jurisdiction I know anything about is my torts classroom.

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Re: is this a battery?

Postby ODBCP » Sun Sep 18, 2011 10:40 pm

target wrote:
delusional wrote:
kalvano wrote:Courts have already found that secondhand smoke can constitute battery.

http://www.casebriefs.com/blog/law/tort ... nications/


double edit: I'm drunk and shouldn't have posted.

I'll be back in the morning.

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Re: is this a battery?

Postby SupraVln180 » Tue Sep 20, 2011 7:29 pm

I'm going to say the car can be construed as an instrument for a battery, kind of like if you sick your dog on someone and the dog injures them, it's still a battery even if you haven't made physical contact.

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Re: is this a battery?

Postby idk » Mon Oct 15, 2012 1:51 am

kblueboi wrote:sorry ... at the risk of beating this topic to death ... i just wanna clarify ...

in the blind man hypo, the act is speaking. harmful contact results when the truck hits him. so speaking causes the contact ...

that means ... if you brainwash somebody to kill and you activate the brainwashing with the use of a code word and the brainswashed dude karate kicks your law school dean cause you said 'peas and carrots', then you're guilty of a battery also right?

thank you for this

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Re: is this a battery?

Postby nucky thompson » Mon Oct 15, 2012 8:39 pm

some of the above analogies are not actually analogous to the hypothetical (fart/smoke) - fart and smoke is indirect contact but the actor is in control of what indirectly contacts the victim - in the hypo, the actor is not in control of the oncoming traffic.

battery: act for the purpose of causing harmful/offensive contact with person of another or with substantial certainty (virtually certain) that such contact will result, and harmful/offensive contact does result

IMO, there are a few problems. first - the blind man could disregard your directions - telling him where to go does not mean he will go that direction - he has the freedom of choice. Im not sure if this issue is fatal for battery but id like to see some discussion. second - the actor has no control over the cars. it is indirect contact, but the actor had no control over the indirect contact - he was substantial certain the contact would result though.

anyone care to discuss what I have written and clear things up for me?

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kalvano
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Re: is this a battery?

Postby kalvano » Mon Oct 15, 2012 9:05 pm

nucky thompson wrote:IMO, there are a few problems. first - the blind man could disregard your directions - telling him where to go does not mean he will go that direction - he has the freedom of choice. Im not sure if this issue is fatal for battery but id like to see some discussion. second - the actor has no control over the cars. it is indirect contact, but the actor had no control over the indirect contact - he was substantial certain the contact would result though.


If you set a trap in the woods for people, you're responsible for the battery, even though they made the choice to jog down that path. You set the events in motion, therefore you bear the responsibility. The person's choice is not part of the elements of battery.

Your definition of battery is way too complicated. Battery is:

1) An intent
2) To make an unwanted / harmful contact with a person
3) And that contact results

That's it. The other person's choice doesn't really come into play, at the essential level. With directing a blind dude into traffic, you 1) intend for him to have a 2) contact with cars, and that contact 3) results.

Torts is really fucking simple. Don't complicate it up. Look at the elements of a tort and apply them. Don't add to the elements, don't make up extra facts, don't imagine "what if..."

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Re: is this a battery?

Postby nucky thompson » Mon Oct 15, 2012 9:26 pm

when you set a trap in the woods, you were in control of the object making the contact. when you direct a blind man into traffic, you are not in control of oncoming traffic. -- the actor is not actually contacting the person, nor is any instrument that the actor is in control over contacting the person. Just trying to get some clarification, your response did not address this part of my last post


- my definition of battery included substantial certainty - a concept that seems relevant to this hypo. dial down the pretension guy

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kalvano
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Re: is this a battery?

Postby kalvano » Mon Oct 15, 2012 9:38 pm

nucky thompson wrote:when you set a trap in the woods, you were in control of the object making the contact. when you direct a blind man into traffic, you are not in control of oncoming traffic. -- the actor is not actually contacting the person, nor is any instrument that the actor is in control over contacting the person. Just trying to get some clarification, your response did not address this part of my last post


- my definition of batter included substantial certainty - a concept that seems relevant to this hypo. dial down the pretension guy



If you shoot someone with a gun, you aren't in control of the bullet once it leaves the gun. However, you're still responsible for the damage it does. But you set the events in motion. You don't have to be in direct control of the object.

And pretension? I do not think you know what this word means. I told you the elements of battery. That's what is important. On an exam, that's what you say. You go through why it meets each of the elements, then address substantial certainty in defenses to battery.

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Re: is this a battery?

Postby nucky thompson » Mon Oct 15, 2012 9:50 pm

could you use a better analogy to illustrate your point...

you're in control of the gun. you pull the trigger, which sets the bullet out of the gun. without pulling the trigger, the bullet does not go in direction of victim.

actor has no control over the cars. at all.




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