When Determining Liability for Battery, Should We Use the Intent to Harm or the Intent to Touch

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In this case, we should distinguish several questions before we make any decision. First, whether White has the intention to shoot Davis? Then, whether he intended to shoot Tipton? Last is can the hurt transfer to a third person? It’s easy to answer the first question, because “Davis and White did not know each other before the shooting incident”, there was no reason for White to shot Davis. Then, did he has the intention to shoot Tipton, according to White himself, he obtained the gun in order to scare Tipton, he won’t drew the gun if not Tipton insulted his mother. And the direct reason why he fired was just because “he tripped over a rock in the street”, so actually he didn’t intend to fire the gun. White’s testimony sounds full of grievance. While the court holds that his testimony was unworthy of belief. According to he said that “he obtained the gun earlier that week with another meeting with Tipton in mind”, obviously, he decided to shoot Tipton ⑤.

Going back to our three elements of battery, here, the defendant has the intent to touch Tipton, and he’s wrongful, also caused harm. But talked about harm, Tipton didn’t suffer the harm, and it transferred to a third person White who should be innocent. Things become complicated after Davis involved in. A new question aroused, White has no intention to touch Davis, but Davis suffered the harm, then should we use the intent to touch or intent to harm when determining the liability for battery? First, let answer the question that yes, the hurt can transfer to a third person. To quote from W. Prosser, “Under the doctrine of transferred intent one who intends a battery is liable for that battery when he unexpectedly hits a stranger instead of the intended victim” ⑥.

Besides, according to Collier on Bankruptcy, “a wrongful act done intentionally, which necessarily produces harm and is without just cause or excuse, may constitute a willful and malicious injury.” ⑦ So, to some extent, we can say that the action to a third person was deliberate, now the three elements have been corresponded, we can draw a conclusion that in this case when determining the liability of battery, and we should use intent to harm. In fact, the doctrine that the Virginia courts hold has clearly illustrated this point:”…every person is liable for the direct, natural and probable consequence of his acts, and that everyone doing an unlawful act is responsible for all of the consequential results of that act.”⑧

In above two cases, we focus on discussing what the defendant did and the harm be caused, but don’t take the personal factors like age into consideration. There is no doubt White was an adult, it’s uncontested. While in the first case, Putney was only about eleven years of age, whether the court should consider this factor when determining the liability of battery? This question also applies to the next case Garratt v. Dailey. Dailey was just a five years old boy, one day, “Dailey pulled a chair out from under Ruth Garratt just as she was about to sit causing her to fall and break her hip.” The court held that Dailey didn’t have the intent to hurt Garratt, but to our surprise, “the court nevertheless made a finding of $11,000 in damages in case the judgment was overturned on appeal.” since the trial court entered the judgment for defendant, why he still need to pay?

It sounds the verdict was absurd and self-contradictory. It’s not difficult to solve this doubt, Dailey’s action was wrongful regardless his age, and also caused harm, the question is whether he had the intent to touch. According to the fact that “Dailey moved the chair while she was in the act of sitting down,” so the reasonable inference is Dailey had the intent to cause Garratt fall on the ground. Now, we can go to the initial question, can a five year old child be liable for the battery? Answer is yes, even though he was a minor, when he committed a battery, he’s liable for that, the difference is as a minor, he doesn’t need to pay by himself, but his guardian pay for him. ⑨

Through above case, we can see that age is not a problem, the important thing is you are the wrongdoer or the victim. In the next case, the victim became a little child. To quote from the case Talmage v. Smith, first, let’s have a brief look of the facts: Some naughty kids were playing on the roofs of sheds on Smith’s property, in order to frighten them and make them get down, Smith threw a stick at one of them. He missed the intended target but struck Talmage’s eye, the kid lost all sight in the eye. While, Smith still argued that he didn’t intend to attack the plaintiff, so he didn’t have the liability of the battery. The case reminds us of the second case Davis v. White. The two cases are very similar; both defendants missed the original target, but caused harm to another person.

Of course, there is also little difference between them, in White case, the defendant has the intent to hit Tipton, he fired to Tipton, but the bullet hurt Davis. In this case, I don’t think there is any necessity for the plaintiff to order the children to get down at cost of losing one kid’s all sight in the eye. Apparently, he just wanted to frighten them instead of with any intent to do harm, and this is also the reason why Smith thought he was not guilty. The question aroused from this case is the same with that in White case: can the hurt transfer to a third person, or more particularly and professionally clarified as: “If an actor intends to inflict an intentional tort upon one part and accidentally harms a second party, can the actor be held liable to the second party for battery?” It won’t cost too much time to answer this question, about intention, Smith had the intention to injure someone else, though he argued just to scare them, and so, Smith should take the responsibility for the harm caused by his act according to transferred intent doctrine. ⑩

Transferred Intent: The transferred intent torts under common law are: assault, battery, false imprisonment, trespass to land, and trespass to chattels. If an actor has the intent to commit any of the transferred intent torts, the actor will be liable for all other transferred intent torts that result from that act. The actor’s liability extends to all parties harmed, not merely the original intended victim. ⑪

In the above contents, I tried to use the two theories “Elements of the tort of Battery” and “Transferred intent” to analyze the cases, obviously, they have showed the functional implement. On the basis, we can use the tools to apply to more cases.

Sources: ⑫⑬⑭⑮⑯⑰⑱⑲⑳

- All the four definition entries are

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