California civil battery means any intentional, nonconsensual, and harmful or offensive contact by one person to another.
Brad Nakase, Attorney
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To establish civil battery, a plaintiff has to prove three elements:
The defendant must have intended to perform the act that resulted in the harmful or offensive contact; the defendant need not have intended to cause the harm or offense.[2]
In other words, the defendant must only have meant the contact, but he did not have to mean the result of the contact, such as any harm that occurred because of it.
What is an Intentional Act? The intent necessary to constitute a civil battery is not an intent to cause harm, but an intent to do the act which causes the harm.
The intent to cause injury to another is not required.
The defendant is not liable for battery if the act which caused the harm was unintentional.
The intent may be inferred.
The contact must have been harmful or offensive to a reasonable person. [3]
What is Harmful or Offensive Contact? Contact is offensive if it offends a reasonable sense of personal dignity. Therefore, the contact must be of a character that would offend a person of ordinary sensitivity and be unwarranted by relevant social usages. [4]
The usages of a decent society determine what is offensive. For example, touching another person in anger may amount to battery. However, touching another person courteously or casually for a legitimate purpose does not amount to battery. [5]
In a 1986 case, an employer’s unwarranted touching of an employee’s body was deemed offensive even though the employer did not act with any specific intent to harm or be offensive.
The plaintiff has the burden of showing that the contact was “unconsented.” [6]
What is Non-Consensual Contact? As a general rule, one who consents to a touching cannot recover in an action for battery.
However, it is well recognized that a person may place conditions on the consent, and if the actor who is touching exceeds the terms or conditions of the consent, the consent does not protect the actor from liability for the excessive act.
It is important to note that this rule has also been applied against doctors and surgeons in California and other jurisdictions.
Examples of Non-Consensual Contact for Civil Battery: In a 1990 case against an ophthalmologist, the plaintiff successfully claimed that his doctor committed battery when he performed surgery. The doctor performed surgery on the plaintiff’s right eye, but the plaintiff had instead consented to a different type of surgery on her left eye.
Consent may be manifested expressly by acts or conduct, or it may be implied from the circumstances. Therefore, consent does not need to necessarily be shown by writing or by express words. Consent is not a defense if it was fraudulently induced or the defendant exceeded the scope of the consent. Consent is not valid if based on erroneous information from the defendant.
For example, psychiatric patients’ consent to “Sluggo therapy” was invalid because the defendants had fraudulently represented that such physical abuse was necessary for the plaintiffs’ cure.
To constitute a battery, the defendant’s contact must have caused injury, damage, loss or harm to the plaintiff. [7]
What is Causation and Damage? For example, certain touching is nonconsensual. Plaintiff testified that the defendant gave the plaintiff a “wallop” on the side of the head. The plaintiff presented evidence that he suffered symptoms of tinnitus immediately after the contact. The jury agreed with the plaintiff. The appellate court found that there were causation and damage. The cause of the plaintiff’s symptoms was the nonconsensual and harmful contact that he suffered. [8]
Sexual Touching. Because of the defendant’s unwanted sexual touching, the plaintiff suffered physical injury by way of humiliation, pain, anxiety.[9]
Compensatory Damages [10]
The plaintiff may be awarded actual damages that they have suffered due to physical injury. These damages may be a result of hospital bills, lost wages, property damage, and so on.
Emotional Distress Damages [11]
The plaintiff may be awarded damages due to the psychological trauma they have suffered as a result of the defendant’s contact.
Punitive Damages [12]
For the court to grant an award of exemplary damages, the plaintiff must show that they suffered mental anguish. [13]
Attorneys’ Fees [14]
The court may award the plaintiff any attorney’s fees that he owes to his attorney. These fees would be paid by the defendant to the plaintiff’s attorney.
Under California Code of Civil Procedure §335.1, a person must file a civil battery lawsuit within two years.
A court may recognize that privilege may protect a defendant from liability when he can show that he had a legal right to commit the act.
For example, in 1957 plaintiffs sued defendant police officers to recover damage for assault and battery. However, the court held that they were not entitled to recover any damages. The defendant police officers had a legal right to use force against the plaintiffs in that situation. [15]
In a context of self-defense, a defendant may have a right to defend himself from personal injury. However, self-defense cannot contain excessive force. [16]
Justification
A defendant can protect himself from liability by proving that his conduct was justified. He must establish that he was justified by a preponderance of the evidence (“more likely than not”). [17]
A defendant can protect himself from liability if he can show that he was provoked. In this situation, the assault may naturally follow a provocation such as an insult. The court may consider the provoking act or word when estimating damages. [18]
Legal Reference
[1] Barouh v. Haberman, 26 Cal. App. 4th 40, 45-46.
[2] Barouh v. Haberman, 26 Cal. App. 4th 40, 44 n.4.
[3] Barouh v. Haberman, 26 Cal. App. 4th 40, 46.
[4] BAJI 7.51.
[5] Barouh v. Haberman, 26 Cal. App. 4th 40, 46 n. 5. (Citing 1 Harper, James & Gray, The Law of Torts (2d ed 1986) §3.2, pp. 269-70 (fns. omitted).
[6] Barouh v. Haberman, 26 Cal. App. 4th 40, 46-47.
[7] Barouh v. Haberman, 26 Cal. App. 4th 40, 45-47.
[8] Barouh v. Haberman, 26 Cal. App. 4th 40, 46, 47.
[9] Priest v. Rotary, 634 F. Supp. 571, 584 (N.D. Cal. 1986).
[10] (Cal. Civ. Code §3281; Priest v. Rotary, 634 F. Supp. 571, 584 (N.D. Cal. 1986)).
[11] James v. Public Finance Corp., 47 Cal. App. 3d 995, 1000.
[12] Cal. Civ. Code §3294.
[13] James v. Public Finance Corp., 47 Cal. App. 3d 995, 1000.
[14] Cal. Civ. Code §702
[15] Fobbs v. Los Angeles, 154 Cal. App. 2d 464.
[16] Fraguglia v. Sala, 17 Cal. App. 2d 738, 743-46.
[17] Lowry v. Standard Oil Co. of California, 63 Cal. App. 2d 1, 7 (defendant in assault action may defend by establishing, by a preponderance of the evidence, that assault was justified); see also Cal. Civ. Code §43).
[18] McCall v. McDowell, 15 F. Cas. 1235.
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By: Brad Nakase, Attorney
