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University of Denver School of Law
Garcia Hernandez, Cesar Cuauhtemoc



Elements: Act, Intent, Contact (harmful/offensive)


Cannot be committed through accidents
Can be direct or indirect contact (example: touching vs. shooting)
Can include contact with things connected to plaintiff’s body (extended personality)
Tort of battery intends to protect the integrity of the person – access to other people’s bodies


An act is a volitional bodily movement (by the alleged tortfeasor)
Example: he moved his arm through the air toward (P)


A person acts with the intent to produce a consequence if: a) the person acts with the purpose (desire) of producing that consequence; or b) the person acts knowing that the consequence is substantially certain to result
Intent is subjective (defendant’s state of mind is key): did the defendant desire this outcome or know to a substantial certainty that it would occur?
Intent only has to be the intent to contact, not intent to harm (acted with a purpose to violate a person’s bodily integrity)
Plaintiff need not be aware: It is not necessary that the plaintiff have actual awareness of the contact at the time it occurs. (Example: D kisses P while she is asleep. D has committed a battery.)

Unintended consequences doctrine:

The harm might be greater than or different than the one intended to complete (it doesn’t matter who the target was or what manner the contact was intended to occur)

*If you put a course of harm into motion, you are responsible for all the harms to that person regardless of foreseeability

Eggshell P rule: a rule about the extent of the injury – focused on injury that results from some prohibited contact. A tortious actor is responsible for all of the harm that results from the prohibited contact. It doesn’t matter if the actual harm is far in excess of what they originally intended

“A wrongdoer gets her P as she comes”

Doctrine of transferred intent:

If D held the necessary intent with respect to person A, he will be held to have committed an intentional tort against any other person who happens to be injured. (Example: D shots at A, and accidentally hits B. D is liable to B for the intentional tort of battery.) Transferred intent only applies to intentional torts.

*Different kind of tort intended: if a defendant intended to commit an assault, and in fact struck the plaintiff, he will be deemed to have had the intent necessary for battery. This rule applies in the “transferred intent” situation as well. Thus if A intends to frighten B by shooting near her, and the bullet accidentally hits C, A has committed a battery upon C.

How to prove intent:

-Direct evidence is usually not available

-Use circumstantial evidence

-Motive is not intent

Battery – Intent Cases:

Nelson v. Carroll

Facts: Carroll intended to pistol whip but accidentally shot

Rule: if you’re engaging in one battery, you are liable for unintended consequences (another battery)

Wagner v. State

Facts: mentally disabled man attacked Wagner at K-Mart

Rule: a battery claim doesn’t require intent to harm/a battery claim simply requires that there was intent to contact (and that contact could be harmful)

Vosburg v. Putney

Facts: kid kicked other kid in leg at school

Rule: there was intent to contact, which is sufficient (would’ve been different at recess)

*Eggshell plaintiff rule: it’s better for a wrongdoer to bear the cost of a tort than the victim to do so

Cole v. Hibberd

Facts: friend kicked another friend in the butt

Rule: it was a battery (so it was barred by the statute of limitations)

In re White

Facts: man accidentally shoots neighbor (not who he was aiming for)

Rule: injury isn’t required to be intended for the victim, just that there was an intentional wrongful act in general (doctrine of transferred intent)

Martin v. State

Facts: an inmate placed items in storage and they were gone when he went to retrieve them → sued the state

Rule: the state is entitled to sovereign immunity (and the actors he blamed weren’t state employees because it was a private prison)


*Need harmful OR offensive contact (one is sufficient)

Harmful Contact: contact is harmful when it causes bodily harms such as physical injury, pain, illness

Offensive Contact: offensive to an ordinary person not unduly sensitive – it must “violate prevailing social standards of acceptable touching” (trivial amount of physical contact may be enough)

Harmful/Offensive Contact Cases:

Cecarelli v. Maher

Facts: public dance → Cecarelli drove women home → got beaten up

Rule: classic battery case (he received money for medical, lost employment, pain/suffering)

*harmful contact

Paul v. Holbrook

Facts: Holbrook

asonable apprehension that immediate harmful or offensive contact will occur

Harmful Contact: contact is harmful when it causes bodily harms such as physical injury, pain, illness

Offensive Contact: offensive to an ordinary person not unduly sensitive – it must “violate prevailing social standards of acceptable touching”

Assault Cases:

Beach v. Hammock

Facts: pointing an unloaded gun

Rule: counts as assault if there is imminent apprehension that harmful contact will occur

Brooker v. Silverthorne

Facts: telephone operator threat (“if I were there…”)

Rule: words alone aren’t an assault (ordinary person wouldn’t apprehend imminent harm)

Vetter v. Morgan

Facts: spit on minivan and threatened

Rule: threatening words can give rise to an assault claim (if accompanied by conduct or circumstances that lead to a reasonable apprehension of imminent harmful or offensive contact)

Defenses to Assault and Battery

Defenses to assault and battery typically assert that the alleged tortfeasor was “privileged” to act as she did, even though her conduct was prima facie tortious (justifications as opposed to excuses).
Comparative fault is NOT available as a defense to intentional torts
Defenses include: consent, self defense, defense of others, defense of property


Express: P gave consent (in words or in writing)

Implied: consent that is assumed (usually by participating in a certain act)

-If there’s mistake, fraud, or coercion, the consent is invalid

-Consent doesn’t negate the defenses, it justifies them

-Using implied consent defense, you must look at several factors such as age, gender, sophistication of the parties, relationship of the parties, and any other circumstances

-People cannot usually consent to illegal activities