UPDATED: The black letter provided in this post was updated on May 3, 2017.

Section 3 – Battery: Definition of Offensive Contact, of the Intentional Torts project appeared at ALI’s Annual Meeting in 2015 (at the time it was numbered Section 103). Due to a close vote on Section 3(b) (then 103(b)), it was agreed that this Section would be brought back to a future Annual Meeting.

The ALI Adviser regularly shares content of ALI drafts. This is the first Section of the Intentional Torts project that will be presented here. Due to the full length of the Section, full black letter and the first paragraph of each comment section are included below.  If you are interested in a complete copy of the black letter and comments from this section, please contact us.

Black Letter and Comment from Tentative Draft No. 2:

§ 3. Battery: Definition of Offensive Contact

A contact is offensive within the meaning of § 1(c)(ii) if:

(a) the contact is offensive to a reasonable sense of personal dignity; or

(b) the contact is highly offensive to the other’s unusually sensitive sense of personal dignity, and

(i) the actor knows to a substantial certainty that the contact will be highly offensive to the other; or
(ii) the actor contacts the other with the purpose that the contact will be highly offensive.

Liability under Subsection (b) shall not be imposed if the court determines that avoiding the contact would have been unduly burdensome or that imposing liability would violate public policy.

Comment:

a. The contact offends a reasonable sense of personal dignity. Proof that the plaintiff subjectively was offended by a nonconsensual contact is insufficient for offensive-battery liability. Rather, the plaintiff must prove that the contact in question offends a reasonable sense of personal dignity (or that the actor knew that the contact would be highly offensive to the plaintiff, as explained in Comment b).

b. The actor knows that the contact is highly offensive to the plaintiff. The Caveat to Restatement Second, Torts § 19 declines to take a position on whether an actor is subject to offensive-battery liability when the actor knows the contact will be offensive to the other’s “known but abnormally acute sense of personal dignity.” Subsection (b) of this Section addresses this issue and endorses liability when the actor knows that the contact will be highly offensive to the plaintiff’s sense of personal dignity. However, the last paragraph of this Section imposes important qualifications on such liability. Liability should not be imposed if such liability would violate public policy or if requiring the actor to avoid contacting the plaintiff would be unduly burdensome. Moreover, the court is empowered to make these nonliability judgments as a matter of law.

c. “Purpose to offend” as an alternative to § 3(b). A possible alternative to Subsection (b) that would nevertheless expand liability beyond § 3(a) is a “purpose” standard: the actor would be liable only if he or she contacted the plaintiff for the very purpose of offending (or of highly offending) the plaintiff. (There would be less need for “undue burden” and “against public policy” limitations upon the tort if this alternative approach were adopted.)

Kenneth W. Simons

Reporter, Restatement of the Law Third, Torts: Intentional Torts to Persons

Kenneth W. Simons is a leading scholar of tort law, criminal law, and law and philosophy. He has published influential scholarship concerning assumption of risk and contributory negligence; the nature and role of mental states in criminal, tort and constitutional law; and negligence as a moral and legal concept. He has published influential scholarship concerning assumption of risk and contributory negligence; the nature and role of mental states in criminal, tort and constitutional law; and negligence as a moral and legal concept. Professor Simons was a law clerk to U.S. Supreme Court Justice Thurgood Marshall and to Judge James L. Oakes, U.S. Court of Appeals for the Second Circuit.

W. Jonathan Cardi

Associate Reporter, Restatement of the Law Third, Torts: Intentional Torts to Persons

Jonathan Cardi  is a professor at Wake Forrest University School of Law. Professor Cardi specializes in tort law, the law of remedies, and the intersection of race and the law. He is co-author of a torts casebook, a remedies casebook, two commercial outlines, and is co-editor of a book entitled Critical Race Realism. He has served as President of the Southeastern Association of Law Schools and Chair of the Remedies Section of the AALS.

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