The Torts Restatement's Inchoate Definition of Intent for Battery, and Reflections on the Province of Restatements

Abstract

In the present Article, I will first elaborate on the current uncertainty of the nature of the intended consequence for traditional personal injury torts, focusing on the quintessential intentional tort of battery. I will also discuss why I believe it is important for the Institute to clarify the concept of intent relating to battery and other traditional intentional torts.

Second, I shall proffer a formulation of one possible way to reduce the uncertainty regarding the meaning of intent for the purposes of battery. Namely, for the purposes of the intent requirement, I propose that in addition to proving that the defendant intended to cause the subject contact (or its apprehension), the plaintiff should also have to prove either: (1) that the defendant entertained a purpose or knew to a substantial certainty that the contact or its apprehension would be harmful or offensive, or alternatively, (2) that immediately prior to initiating the contact, the defendant both (a) knew that valid consent was required or that in its absence the contact or its apprehension would be of a harmful or offensive character, and (b) either (i) was aware and contemporaneously cognizant of the absence of or deviation from the reasonably evident consent of the contemplated recipient of the contact (meaning aware and contemporaneously cognizant of the absence of or his own lack of knowledge of information that a reasonable person would understand as establishing the existence of consent of the contemplated recipient of the contact, or aware and contemporaneously cognizant of the existence of information a reasonable person would understand as being inconsistent with the consent of the contemplated recipient of the contact), or (ii) did not honestly believe that he had valid consent of the contemplated recipient of the contact. 

Finally, I will take the occasion of the publication of volume 1 of the latest torts restatement project as an opportunity to reflect on the province and role of restatements. As they craft restatements, I believe the drafters and the Institute should be guided by two goals. The first is to address and reduce uncertainty and complexity in the law, and, as adjuvant, to keep the restatement provisions current and vital. Second, I believe those formulating and revising restatements should consider not only the aim to "restate" the law, if the state of the law and its stability, salience, and broad-based acceptance make it feasible and appropriate to do so, but should also thoughtfully assess and guide the law's development. Thus, I believe the drafters and the Institute should embrace a broadly conceived, creative orientation, which is not inordinately focused on creating provisions that are reflections of composite nose counts, especially when faced with a conflicting, fluid, or largely indeterminate and opaque state law tapestry on a particular issue. The formulation of restatements should be informed not only by a sense of the weight of authority, but also guided by sound underlying policy goals. In particular, I will examine the evolving role of restatements and assess the validity of the putative dichotomy on whether to restate the law as it is (or may once have been) or to state the law as it ought to be.