Torts Question Forum

[Bustang]

Interesting hypothetical related to battery brought up by my professor:

A bunch of students are smoking cigarettes outside of a building. There is a "no smoking 10 feet from building" policy on campus. They are following the policy. Also, the policy is in no way limiting their "right to smoke" or "right to pursue their personal projects."

Person A walks outside and the group of smokers blow the smoke into person A's face.


Battery? That is, did this hypo satisfy element number 3?

For there to be battery the D must:
1. (1) act,
2. (2) act with intention to cause harmful or offensive contact,
3. (3) the act must cause a contact with the victim, and
4. (4) the intended contact must be either harmful or offensive to the victim.

Seems that blowing smoke in ones face would satisfy the intent to cause offensive contact and or harmful contact. So long as a reasonable person (created by court) examines the time & place it occurred and deems it offensive, that is all that matters. Harmful contact is defined as any physical pain, injury or illness. One could construe physical pain all the way to coughing (as it is uncomfortable) due to the smoke entering their lungs. The harmful particulates also damage your lungs upon entry, causing injury.

[ChattTNdt]

Interesting hypothetical related to battery brought up by my professor:

A bunch of students are smoking cigarettes outside of a building. There is a "no smoking 10 feet from building" policy on campus. They are following the policy. Also, the policy is in no way limiting their "right to smoke" or "right to pursue their personal projects."

Person A walks outside and the group of smokers blow the smoke into person A's face.


Battery? That is, did this hypo satisfy element number 3?

For there to be battery the D must:
1. (1) act,
2. (2) act with intention to cause harmful or offensive contact,
3. (3) the act must cause a contact with the victim, and
4. (4) the intended contact must be either harmful or offensive to the victim.

Seems that blowing smoke in ones face would satisfy the intent to cause offensive contact and or harmful contact. So long as a reasonable person (created by court) examines the time & place it occurred and deems it offensive, that is all that matters. Harmful contact is defined as any physical pain, injury or illness. One could construe physical pain all the way to coughing (as it is uncomfortable) due to the smoke entering their lungs. The harmful particulates also damage your lungs upon entry, causing injury.

From my understanding of my Torts professor's discussion of the Leichtman case (Ohio '94), tobacco smoke is "particulate matter" and does have the physical properties required for contact. Intentional blowing of smoke in the face of a nonconsenting person is a battery. However, courts are hesitant to establish precedent for the "smoker's battery," suggesting alternative dispute resolution.

[GoodToBeTheKing]

Interesting hypothetical related to battery brought up by my professor:

A bunch of students are smoking cigarettes outside of a building. There is a "no smoking 10 feet from building" policy on campus. They are following the policy. Also, the policy is in no way limiting their "right to smoke" or "right to pursue their personal projects."

Person A walks outside and the group of smokers blow the smoke into person A's face.


Battery? That is, did this hypo satisfy element number 3?

For there to be battery the D must:
1. (1) act,
2. (2) act with intention to cause harmful or offensive contact,
3. (3) the act must cause a contact with the victim, and
4. (4) the intended contact must be either harmful or offensive to the victim.

Seems that blowing smoke in ones face would satisfy the intent to cause offensive contact and or harmful contact. So long as a reasonable person (created by court) examines the time & place it occurred and deems it offensive, that is all that matters. Harmful contact is defined as any physical pain, injury or illness. One could construe physical pain all the way to coughing (as it is uncomfortable) due to the smoke entering their lungs. The harmful particulates also damage your lungs upon entry, causing injury.

From my understanding of my Torts professor's discussion of the Leichtman case (Ohio '94), tobacco smoke is "particulate matter" and does have the physical properties required for contact. Intentional blowing of smoke in the face of a nonconsenting person is a battery. However, courts are hesitant to establish precedent for the "smoker's battery," suggesting alternative dispute resolution.

I think I would tend to agree with the courts hesitation. If the courts were to set precedent for "smoker's battery" it seems like it would open the flood gates to many lawsuits. The value of judicial process must be weighed in this matter.

[Bustang]

Interesting hypothetical related to battery brought up by my professor:

A bunch of students are smoking cigarettes outside of a building. There is a "no smoking 10 feet from building" policy on campus. They are following the policy. Also, the policy is in no way limiting their "right to smoke" or "right to pursue their personal projects."

Person A walks outside and the group of smokers blow the smoke into person A's face.


Battery? That is, did this hypo satisfy element number 3?

For there to be battery the D must:
1. (1) act,
2. (2) act with intention to cause harmful or offensive contact,
3. (3) the act must cause a contact with the victim, and
4. (4) the intended contact must be either harmful or offensive to the victim.

Seems that blowing smoke in ones face would satisfy the intent to cause offensive contact and or harmful contact. So long as a reasonable person (created by court) examines the time & place it occurred and deems it offensive, that is all that matters. Harmful contact is defined as any physical pain, injury or illness. One could construe physical pain all the way to coughing (as it is uncomfortable) due to the smoke entering their lungs. The harmful particulates also damage your lungs upon entry, causing injury.

From my understanding of my Torts professor's discussion of the Leichtman case (Ohio '94), tobacco smoke is "particulate matter" and does have the physical properties required for contact. Intentional blowing of smoke in the face of a nonconsenting person is a battery. However, courts are hesitant to establish precedent for the "smoker's battery," suggesting alternative dispute resolution.

I think I would tend to agree with the courts hesitation. If the courts were to set precedent for "smoker's battery" it seems like it would open the flood gates to many lawsuits. The value of judicial process must be weighed in this matter.

Correct. SCOTUS was unwilling to allow the "substantial certainty" portion of intent to extend to blowing cigarette smoke around because of this very reason. However, it was obvious in this case that D acted with the purpose of producing the consequence (smoke reaching Ps face).
Leichtman v. WLW Jacor Communications, Inc

[traehekat]

Honestly, I think a lot of confusion is cleared up after you spend a little quality time with Glannon.

[usuaggie]

Honestly, I think a lot of confusion is cleared up after you spend a little quality time with Glannon.

agreed. my assigned textbook for torts is E&E by glannon

[GoodToBeTheKing]

Honestly, I think a lot of confusion is cleared up after you spend a little quality time with Glannon.

agreed. my assigned textbook for torts is E&E by glannon

really? very interesting...

[revolution724]

Interesting hypothetical related to battery brought up by my professor:

A bunch of students are smoking cigarettes outside of a building. There is a "no smoking 10 feet from building" policy on campus. They are following the policy. Also, the policy is in no way limiting their "right to smoke" or "right to pursue their personal projects."

Person A walks outside and the group of smokers blow the smoke into person A's face.


Battery? That is, did this hypo satisfy element number 3?

For there to be battery the D must:
1. (1) act,
2. (2) act with intention to cause harmful or offensive contact,
3. (3) the act must cause a contact with the victim, and
4. (4) the intended contact must be either harmful or offensive to the victim.

Seems that blowing smoke in ones face would satisfy the intent to cause offensive contact and or harmful contact. So long as a reasonable person (created by court) examines the time & place it occurred and deems it offensive, that is all that matters. Harmful contact is defined as any physical pain, injury or illness. One could construe physical pain all the way to coughing (as it is uncomfortable) due to the smoke entering their lungs. The harmful particulates also damage your lungs upon entry, causing injury.

I don't think you even need to prove harmfulness (except injury for damages), if you can instead argue that most people would find someone blowing smoke in their faces offensive. I don't think it would be a stretch to say that; it's milder than but analogous to spitting in someone's face.

[charlesjd]

.

[usuaggie]

Honestly, I think a lot of confusion is cleared up after you spend a little quality time with Glannon.

agreed. my assigned textbook for torts is E&E by glannon

really? very interesting...

everybody says that. some 2 and 3ls didnt believe me and said it must have been a mistake.

[Omerta]

With regards to cigarette smoke:

A intentionally blows cigarette smoke in B's face (they are 1-2 feet away from each other).

Cali says that is a battery, but that is about it. Just about any other situation with cigarette smoking is not a battery unless it is so obvious that the defendant intentionally acted with unlawful intentions or was sub. certain that h or o contact would occur. Maybe A was smoking in a small room and knew that B had "really bad" asthma and B had an asthma attack, nearly dyeing. I believe that was satisfy the intent to commit a battery, especially if A knew about his condition. However if his asthma was not very severe, or B is merely allergic to cigarette smoke, prob not.

There's a case in my torts book after intent discussion where ∆ new π was allergic to smoke (not super allergic) and was sued for battery.

A lot of people in my torts section seemed pretty confused about this concept too. My understanding of battery was that as soon as the touching occurred, then the tort had been fulfilled on the condition of damages. The way my professor framed it, as soon as the contact had been made, the tort has been completed. The one exception we reached was from the Wallace v. Rosen case. It was uncontested that touching occurred and damage resulted (π broke foot after falling down stairwell) but no battery was found because "certain contact is to be expected in a crowded world." It seemed that this exception was meant to be pretty narrow though. The touching happened during a fire alarm when π was in a staircase and blocking the exit route. Since that touch was "customary and reasonable" because certain things, like tap on shoulder to get attention during a fire alarm, are part of daily life.

Think about the case where a UVA law professor was sued because he touched a student while asking the hypo "Did I just commit battery?" The student alleged that it was a caress and revived memories of her being gang raped when she was 11 in some South American country. He touched her, thus completing the tort. It helps me to think of battery compared to negligence. You can't be intentionally negligent, only recklessly so because negligence implies the result was accidental. On the other hand, you can't unintentionally touch someone and commit battery. Transferred intent covers if A tries to hit B but hits C.

Cliff notes: Intent goes only to what ∆ contact, not damages, could reasonably believe from his/her actions. If I reach out towards you, I have the intent to touch you and I have the reasonable belief that my manifestation of intent will result in physical contact. It shouldn't be confused with the reasonable belief of what damages are substantially certain to occur (see spivey v. battaglia for a case where the court fudged up).

Does what I wrote make sense? Please feel free to correct me if I'm wrong or ask me to clarify.

[RP1983]

So the only intent that is needed is the intent to create contact? (not the intent to create harmful or offensive contact, just contact in general as long as the end result is offensive)?

No. The intent has to be done with the knowledge of substantial certainty that a harmful or offensive contact will occur. If there is just the mere appreciation or risk or the slight possibility of risk, then there is no intent and no battery.

An example of this is in Wallace v Rosen 2002. Rosen touched Wallace when trying to get her attention to evacuate the building during a firedrill. Wallace fell and broke her leg. She sued for battery but lost.

You need knowledge of subtantial certainty.

[RP1983]

So the only intent that is needed is the intent to create contact? (not the intent to create harmful or offensive contact, just contact in general as long as the end result is offensive)?

No. The intent has to be done with the knowledge of substantial certainty that a harmful or offensive contact will occur. If there is just the mere appreciation or risk or the slight possibility of risk, then there is no intent and no battery.

An example of this is in Wallace v Rosen 2002. Rosen touched Wallace when trying to get her attention to evacuate the building during a firedrill. Wallace fell and broke her leg. She sued for battery but lost.

You need knowledge of subtantial certainty.

Nope.

There is a JX split on intent
Some states require you intend contact and you intend it to be harmful/offensive. AKA "Dual Intent JX"
Some states merely require that you intend the contact.

Substantial certainty is an intent substitute. I.e. I can not "intend" to hit you, but if I act with substantial certainty that I will hit you, then the intent element of battery is satisfied.

Im confused Betasteve. Are you argreeing with me? Help a 1L out.

[Vronsky]

hello everyone, first time poster and fellow 1L. wanted to comment because we covered the same topic in class today. thought i could help, but i'm feeling a little smug so if i'm wrong please shoot me down.

Regarding intent: Betasteve hit the answer. The answer is "it depends."

Some states require "dual intent" - that you INTEND to make contact, and that you INTEND it to be harmful. In contrast, other states require only "single intent" - that you INTEND to make contact, regardless of intending it to be harmful/offensive of not.

This is illustrated in 2 cases from the Dobbs casebook.
1) White v. Muniz (Colorado) - demented old lady hits caretaker intentionally, but it's not clear if she intended to harm. "Some courts around the nation have abandoned the dual intent requirement (that being an intent to contact and an intent that the contact be harmful/offensive)" Colorado follows the dual intent requirement... so "jury must find that the actor intended offensive or harmful consequences." Thus, battery.

2) Wagner v. State (Utah) - essentially the same fact pattern, except its a mentally disabled person who hits someone in a store (state program is supervising). "Utah has adopted the Second Restatement... We hold that the actor need not intend that his contact be harmful/offensive, so long as he deliberately made contact." ie single intent, thus no battery.

If you've read Getting to Maybe, I believe this is what ss referred to as a "fork in the road." So on an exam, if you have a hypo where the actor clearly intended to make contact, but may not have intended it to be harmful, this makes for a useful issue.

[usuaggie]

right ( Vronsky), but you don't have to intend to make contact. Say, I pick up a rock and I throw it at Steve who is picking flowers naked in the meadow, hoping to scare him just cause I like scaring people. My arm is better than I think and I hit steve square in his butt hole, causing pain every time he goes to the bathroom. Even though I didn't intend contact, it would likely still be battery (even though I basically intended assault).


you can still have intended contact, have that intended contact not be harmful/offensive, and still commit a battery. if I come up to you and trip you, expecting you to fall into the giant pile of pillows next to you, but instead you fall into the pile of rusted nails just to the left of the pillows, I am responsible for any injuries you occur because i intended the contact that could result in injury, albeit not harmful contact.

however, if the contact is normal, such as a handshake, and you have a freak injury caused by the handshake, it would not be battery. it would be fragile bones. drink more milk.



p.s. 1L here, don't take it as fact. merely my interpretation.

[RP1983]

Nope.

There is a JX split on intent
Some states require you intend contact and you intend it to be harmful/offensive. AKA "Dual Intent JX"
Some states merely require that you intend the contact.

Substantial certainty is an intent substitute. I.e. I can not "intend" to hit you, but if I act with substantial certainty that I will hit you, then the intent element of battery is satisfied.

Im confused Betasteve. Are you argreeing with me? Help a 1L out.

Disagreeing with you. You don't have to have substantial certainty of the occurrence of the contact if you intend the contact.
Example: I pick up a baseball bat and wildly swing it at you. I have no idea as to whether the bat is long enough, or you are close enough, but I am acting with the intent to hit you. If I make contact, that's battery. I don't have to be substantially certain that I will make contact.

Compare that with a Garrret v. Daily situation where, I pull a chair out from under you... I am not acting with the intent that you hit the ground (say my intent is merely a joke or wanting the chair) but if I am substantially certain that my action will cause a harmful or offensive contact, then the intent element of battery is fulfilled by the substantial certainty (as a substitute).
You'll also see this with the transferred intent doctrine in intentional torts, where one intent or substantial certainty can serve to fulfill the element of intent for something else.

I think we are in agreement here and that what you just said is what I meant to say, I just didn't articulate it as well as you did. I also forgot to include the Subjective Desire part which you did. It was late at night I am only in my 3rd week of school so that will be my excuse. Good to know that I have some understanding so far though.

[RP1983]

right ( Vronsky), but you don't have to intend to make contact. Say, I pick up a rock and I throw it at Steve who is picking flowers naked in the meadow, hoping to scare him just cause I like scaring people. My arm is better than I think and I hit steve square in his butt hole, causing pain every time he goes to the bathroom. Even though I didn't intend contact, it would likely still be battery (even though I basically intended assault).


you can still have intended contact, have that intended contact not be harmful/offensive, and still commit a battery. if I come up to you and trip you, expecting you to fall into the giant pile of pillows next to you, but instead you fall into the pile of rusted nails just to the left of the pillows, I am responsible for any injuries you occur because i intended the contact that could result in injury, albeit not harmful contact.

however, if the contact is normal, such as a handshake, and you have a freak injury caused by the handshake, it would not be battery. it would be fragile bones. drink more milk.



p.s. 1L here, don't take it as fact. merely my interpretation.

Yeah I think you have it. You just need subjective desire, or substantial certainty of a harmful or offensive contact.