Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 2. Intentional Harms
Notes
1. Intent required. Though not emphasized in the Fisher case, offensive battery requires that
the defendant have acted with intent—in the Restatement formulation, “inten[t] 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.” RESTATEMENT (SECOND) OF TORTS § 18 (1965). This language is identical to the
language found in the Restatement provision on conventional (harmful) battery, discussed in the
previous section. The key distinction between harmful battery and offensive battery is the nature
of the contact that results.
2. Why recognize offensive battery? It will become very clear as this book goes on that tort
law does not supply a remedy for all types of wrongful conduct, even conduct that is widely
reviled. Some types of wrongful conduct have gone untouched because judges have worried
about interfering in particular relationships (e.g., husband and wife, parent and child), or about
creating incentives for fraud, or simply about opening the door to an unmanageable number of
cases. Judges have deemed other types of wrongful conduct too trivial, too petty. Why, then, has
the law long recognized a cause of action for physical contacts that offend but do not harm? What
about the maxim “no harm, no foul”? The 1872 case Alcorn v. Mitchell, 63 Ill. 533, involving a
defendant who deliberately spit in the face of the plaintiff, offers a classic explanation for the
law’s recognition of offensive battery. The spitting, according to the concise statement of facts,
occurred in a court room, at the close of a legal proceeding between the two men (adjudicating a
charge of trespass), and “in the presence of a large number of persons.” Id. at 553. In
consequence, a trial court awarded the defendant to pay $1,000, a hefty sum at the time. In
upholding the award, the Illinois Supreme Court characterized the spitting as an act “of the
greatest indignity, highly provocative of retaliation by force.” Id. at 554. To “sav[e] the necessity
of resort to personal violence as the only means of redress” and thereby preserve “public
tranquility,” the court explained, the law “should afford substantial protection against such
outrages, in the way of liberal damages.” Id.
How does this justification hold up in an age of modern policing, when we disapprove, at
least formally, of individual citizens taking the law into their own hands? Does it appear
anachronistic now that the concepts of honor and reputation no longer play such important roles in
everyday life? Professor Scott Hershovitz defends damage awards in cases like this on the ground
that, even if they do not prevent violence, they recognize and rebut a moral injury; judgment by
judgment, they create and recreate the world we want to live in. “We are the agents of morality,”
Hershovitz argues. “There is no one else to do the job. If we think that, as a matter of morality,
Mitchell’s dignity confers on him a right to be free from insults like Alcorn’s spit, then we must
live as if he has that right. . . . Tort is a way for us to do that.” Scott Hershovitz, Treating Wrongs
as Wrongs: An Expressive Argument for Tort Law, 10 J. TORT L. 1, 15 (2018); see also Leslie
Bender, Tort Law’s Role as a Tool for Social Justice Struggle, 37 WASHBURN L.J. 249 (1998)
(“Giving people who are injured compensation from their harm-causers is one way our social
order can help promote their dignity and their ability to be social equals.”). Do you buy it? In the
big scheme of things, are cases of offensive battery a good use of judicial resources?
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