This 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.

Sugarman, Stephen D., Restating the Tort of Battery (September 19, 2017). UC Berkeley Public Law Research Paper. Available at SSRN: https://ssrn.com/abstract=3039735 or http://dx.doi.org/10.2139/ssrn.3039735


Stephen Sugarman

UC Berkeley Law

Stephen Sugarman is the Roger J. Traynor Professor of Law at UC Berkeley Law. He joined the Berkeley faculty in 1972. He regularly teaches Torts, and occasionally teaches Sports Law, Food Law and Policy, Educational Policy and Law, and other courses in the social justice curriculum.


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