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Restating the Tort of Battery

Restating the Tort of Battery AbstractThis article offers a bold proposal: eliminate the intentional tort of battery and merge cases of both the negligent and intentional imposition of physical harm into a single new tort. The advantages of a single tort of wrongfully causing physical harm to persons are many. It would (a) do away with complex and unneeded doctrinal details now contained within battery law, (b) pave the way to a sensible regime of comparative fault for all such physical injuries, (c) properly shift the legal focus away from the plaintiff’s conduct and onto the defendant’s, (d) eliminate the Restatement’s need to supplement battery law with yet a separate intentional physical harm tort when an injury is intentionally caused but without the contact or other requirements of battery, and (e) force courts to decide various collateral issues (like whether punitive damages are available or whether liability insurance coverage is applicable) on their own terms and not by linking them to whether this case involves a battery (and then making exceptions, since it turns out that battery is not a reliable basis for deciding those collateral matters). More broadly, the new tort is intellectually more insightful as it anchors acts that now count as batteries more in their wrongfulness than in their intentionality as battery law does today. http://www.deepdyve.com/assets/images/DeepDyve-Logo-lg.png Journal of Tort Law de Gruyter

Restating the Tort of Battery

Sugarman, Stephen D.
Journal of Tort Law , Volume 10 (2): 40 – Sep 25, 2018
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Publisher
de Gruyter
Copyright
© 2017 Walter de Gruyter GmbH, Berlin/Boston
ISSN
1932-9148
eISSN
1932-9148
DOI
10.1515/jtl-2017-0020
Publisher site
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Abstract

AbstractThis article offers a bold proposal: eliminate the intentional tort of battery and merge cases of both the negligent and intentional imposition of physical harm into a single new tort. The advantages of a single tort of wrongfully causing physical harm to persons are many. It would (a) do away with complex and unneeded doctrinal details now contained within battery law, (b) pave the way to a sensible regime of comparative fault for all such physical injuries, (c) properly shift the legal focus away from the plaintiff’s conduct and onto the defendant’s, (d) eliminate the Restatement’s need to supplement battery law with yet a separate intentional physical harm tort when an injury is intentionally caused but without the contact or other requirements of battery, and (e) force courts to decide various collateral issues (like whether punitive damages are available or whether liability insurance coverage is applicable) on their own terms and not by linking them to whether this case involves a battery (and then making exceptions, since it turns out that battery is not a reliable basis for deciding those collateral matters). More broadly, the new tort is intellectually more insightful as it anchors acts that now count as batteries more in their wrongfulness than in their intentionality as battery law does today.

Journal

Journal of Tort Law – de Gruyter

Published: Sep 25, 2018

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