§ 13 BATTERY: HARMFUL CONTACT

 An actor is subject to liability to another for battery if

(a)  he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and

(b)  a harmful contact with the person of the other directly or indirectly results.
 
 

COMMENTS & ILLUSTRATIONS:  Comment:

a.  At common law the appropriate form of action for bodily harm directly resulting from an act done with the intention stated in Clause (a) was trespass for battery. (See Scope Note to this Topic.)

b.  As to the meaning of the word "act," see § 2. As to the necessity of an act, see § 14.

c.  As to the meaning of "intending," see § 8 A. If an act is done with the intention described in this Section, it is immaterial that the actor is not inspired by any personal hostility to the other, or a desire to injure him. Thus the fact that the defendant who intentionally inflicts bodily harm upon another does so as a practical joke, does not render him immune from liability so long as the other has not consented. This is true although the actor erroneously believes that the other will regard it as a joke, or that the other has, in fact, consented to it. One who plays dangerous practical jokes on others takes the risk that his victims may not appreciate the humor of his conduct and may not take it in good part. So too, a surgeon who performs an operation upon a patient who has refused to submit to it is not relieved from liability by the fact that he honestly and, indeed, justifiably believes that the operation is necessary to save the patient's life. Indeed, the fact that medical testimony shows that the patient would have died had the operation not been performed and that the operation has effected a complete cure is not enough to relieve the physician from liability. See § 892 A, Illustration 2.

d.  As to the meaning of "subject to liability," see § 5. The defendant's act must be a legal cause of the contact with the plaintiff's person, and the liability is defeated by any privilege available to the defendant under §§ 49-156. In particular, the plaintiff's consent to the contact with his person will prevent the liability. The absence of such consent is inherent in the very idea of those invasions of interests of personality which, at common law, were the subject of an action of trespass for battery, assault, or false imprisonment. Therefore the absence of consent is a matter essential to the cause of action, and it is uniformly held that it must be proved by the plaintiff as a necessary part of his case. The effect of consent is covered in §§ 892-892 D.
 
 

REPORTERS NOTES:  This Section has been changed from the first Restatement, in order to conform to the style of later Sections, in which the actor is stated to be "subject to liability," without spelling out in each Section the necessity of legal cause or the possibilities of defenses. No change in substance is intended.

As to Comment c, see the following cases of horseplay and practical jokes: Newman v. Christensen, 149 Neb. 471, 31 N.W.2d 417 (1948); Moore v. El Paso Chamber of Commerce, 220 S.W.2d 327 (Tex. Civ. App. 1949), refused no reversible error; Markley v. Whitman, 95 Mich. 236, 54 N.W. 763, 20 L.R.A. 55, 35 Am. St. Rep. 558 (1893); Reynolds v. Pierson, 29 Ind. App. 273, 64 N.E. 484 (1902); Keel v. Hainline, 331 P.2d 397 (Okla. 1958). Also Clayton v. New Dreamland Roller Skating Rink, 14 N.J. Super. 390, 82 A.2d 458 (1951), misguided attempt to help.

Compare the cases of women kissed without their consent: Ragsdale v. Ezell, 20 Ky. L. Rep. 1567, 49 S.W. 775 (1899); Liljegren v. United Railways Co. of St. Louis, 227 S.W. 925 (Mo. App. 1921); Craker v. Chicago & Northwestern R. Co., 36 Wis. 657, 17 Am. Rep. 504 (1875).