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Elements of a Battery

Battery is a general intent offense. This means that the actor doesn't need to intend the specific harm resulting from unwanted contact, but only intends to commit an act of unwanted contact. This also means that gross negligence or even recklessness may provide the required intent or, in criminal matters, mens rea to find a battery.

The doctrine of transferred intent is also applicable. If one person intends to strike another, but moves out of the way to avoid being struck, causing the blow to hit a third person, both an assault (against the second person) and a battery (against the third person) has occurred, in both criminal and civil law.

This is important in the distinction between a battery and an assault.

A battery involves actual contact. An assault is, in actuality, an incomplete battery; a person commits an assault if he or she intentionally places a person in apprehension of an impending battery. Conversely, if a person intended only an assault (to cause apprehension of an imminent battery), and harmful or offensive contact actually occurs, the person has committed a battery as well as an assault.

This is also important in distinguishing accidental conduct. If a person violently, but accidentally, slams into a fellow passenger on a moving public bus, there is no liability. But if on the same public bus, there is only the slightest intentional touching of another, which is harmful or offensive and also non-consensual (such as reaching out and touching a woman's thigh), a battery has occurred.

Conversely, if there was only an intended assault, as in a person gesturing toward another in a menacing manner, and the person trips and actually crashes into the other person, both an assault and battery have occurred.


Non-consensual contact may be made with either a person or that person's extended personality. This means that if one person leans forward and yanks the jewelry necklace off another, a battery has occurred, even though the first person never actually touched the neck of the second person. If this act was preceded with an intent to cause the other to apprehend an impending violent yank of the necklace, both an assault and a battery have occurred.

If the wrongdoer only intended an assault (causing the other to apprehend an impending violent yank of the necklace) but did not intend to actually complete the violent yank, and yet his hand made contact with, and actually yanked off the necklace, both an assault and a battery have occurred. In other words, if in the process of physically gesturing to violently yank the necklace off, contact is actually made and the necklace is pulled from the other's neck, a battery has occurred.

The tort rule of "extended personality" applies to both civil and criminal battery.

For example, if a person threatens to spit into another's cup of coffee (clearly offensive and possibly harmful), and then proceeds to do so, both a criminal and civil battery have occurred. In another case involving the issue of extended contact, a Texas hotel manager was found guilty of a battery when he snatched away a patron's dinner plate in a "loud and offensive manner," even though the contact did not result in any physical harm to the diner.


A plaintiff or complainant in a case for battery does not have to prove an actual physical injury. Rather, the plaintiff must prove unlawful and unpermitted contact with his or her person or property in a harmful or offensive manner. This, in and of itself, is deemed injurious. As in the case of the Texas hotel manager above, the harm may be offensive rather than physical, but equally worthy of compensation under the law.


Once there is palpable harm (be it physical, emotional, or monetary) all elements of a battery are present, and an aggrieved person may file charges.

Of course, in criminal law, the state will file charges for battery, and the victim becomes a witness for the prosecution. In criminal court, the focus is on the guilt or innocence of the defendant and generally, no damages are available to the victim. However, harm may be so severe that he or she may qualify for assistance through a "victims' compensation fund."

Conversely, the victim of a battery may file a civil lawsuit stemming from the same incident, in which the defendant is charged with the tort of battery. In such a case, damages are typically compensatory (a monetary award), along with special relief such as injunctive or punitive. Substantial harm is not required, but nonetheless, there must be palpable harm. Compensatory damages may be for either/both economic and non-economic (emotional) harm.

In the case of the necklace (above), the plaintiff may ask for monetary damages to cover

  • Property (the broken necklace)
  • Physical harm to her neck (economic damages for medical bills, if any, and non-economic damages for pain and suffering, if any), and
  • Emotional harm caused by the incident (the apprehension of a battery; the embarrassment when it actually occurred, etc.)

In the case of transferred intent involving an assault and battery, there will likely be two plaintiffs: the person who was the intended victim of the battery (who sues for assault) and the person who was actually physically harmed (who sues for battery).

In medical malpractice cases involving unauthorized treatments or lack of informed consent, the patient may sue for all costs and treatments, and procedures associated with the battery. This is true in many cases, even where the patient ultimately benefited from the unauthorized treatment (although this may be argued as a mitigating factor by defense).

Discuss Your Battery Claim with an Experienced Attorney

If you're preparing to file a battery claim but don't know where to start, a personal injury attorney can help. An attorney will be able to connect the legal dots to make a convincing case that your claim satisfies the elements of a battery while advocating on your behalf.

You can start the process right now by getting in touch with a personal injury lawyer.

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