Dear John,

Does shining a light into somebody's eyes not entail causing contact
with that person, in the way referred to by you in your email. If not,
then how do you distinguish that from poisoning or setting a dog on
someone?

Many thanks

Ger

On 11/9/15, John Goldberg <jgoldberg@law.harvard.edu> wrote:
> In the U.S., liability for battery requires the defendant to have
> intentionally touched or caused contact with the plaintiff in a manner
> generally regarded as unacceptable or inappropriate. One who punches,
> kicks, gropes, stabs, shoots, sets a dog upon, or administers poison to
> another commits a battery on that person. All of these are intended
> unacceptable touchings, to be contrasted with other forms of contact that
> are intentional but appropriate (e.g., a gentle tap on the shoulder to ask
> for directions) or unintentional. One can think of intentionally harmful
> contacts as just a special subset of the larger set of intentional
> unacceptable/inappropriate contacts. For a helpful discussion of these
> issues, see this Jotwell
> post<http://torts.jotwell.com/moore-on-intent-and-battery/> from Ben
> Zipursky.
>
>
>
> Shining a light in someone's eyes is not a 'touching' and therefore doesn't
> count as a battery even if it causes harm. This is why the draft provisions
> of the Third Restatement of Torts concerning intentional torts to the person
> are contemplating inclusion of a separate wrong dubbed "Purposeful
> Infliction of Bodily Harm." The provision is precisely meant to capture
> cases of purposeful physical harms not caused by physical contact.
>
>
>
> -----Original Message-----
> From: Volokh, Eugene [mailto:VOLOKH@law.ucla.edu]
> Sent: Sunday, November 08, 2015 10:16 AM
> To: obligations@uwo.ca
> Subject: RE: Projecting message onto side of another's building: trespass,
> nuisance, something else?
>
>
>
> In the U.S., there can be liability for harmful OR offensive contact.
> Thus, harm isn't always required: if the contact is offensive enough, it is
> actionable even if it isn't harmful.
>
>
>
> But if the contact is not offensive, then it has to be harmful to be
> actionable. And this may well support the quoted court's analysis in the
> camera flash situation (assuming one views flashing light at someone as
> "contact"): the flash of a camera isn't likely to be "offensive" enough to
> qualify under the offensive contact theory -- but if it's physically
> harmful, then it could be actionable (again, assuming that it counts as
> "contact").
>
>
>
> Eugene
>
>
>
>> -----Original Message-----
>
>> From: Harrington Matthew P. [mailto:matthew.p.harrington@umontreal.ca]
>
>> Sent: Sunday, November 08, 2015 2:23 AM
>
>> To: Julia Davis
>
>> Cc: Volokh, Eugene; obligations@uwo.ca<mailto:obligations@uwo.ca>
>
>> Subject: Re: [Spam?] Re: [Spam?] RE: Projecting message onto side of
>
>> another's
>
>> building: trespass, nuisance, something else?
>
>>
>
>> In Canada battery is an "international unwanted physical contact."
>
>>
>
>> The definition sounds different from the American but I'm not sure the
>
>> concept is. Although the word "harm" is used in America, am I not
>
>> right in assuming that am actual physical harm is not required? Isn't it
>> enough that there is "offence"?
>
>>
>
>> So an 'offensive" touching is really just an "unwanted" touching.
>
>>
>
>> And what we colloquially think of as harm is just taken care of in
>> damages?
>
>>
>
>> Put another way, I'm not sure the Americans require proof of actual
>
>> harm do they? Isn't offence enough? (Based on a reasonable person
>
>> standard.)
>
>>
>
>> Thus aren't we really all talking the same standard? IE :
>
>> unwanted/offensive intentional touching that might or might not result in
>> an actual physical harm?
>
>>
>
>> (Sorry if this is painfully obvious but I'm finding this debate
>
>> interesting.)
>
>>
>
>>
>
>>
>
>>
>
>> On Nov 8, 2015 2:22 AM, Julia Davis
>> <Julia.Davis@unisa.edu.au<mailto:Julia.Davis@unisa.edu.au>> wrote:
>
>> >
>
>> > In Australia we do not use the 'harmful or offensive' formula -- we
>
>> > require
>
>> intended (or reckless) contact -- which does not have to cause harm.
>
>> >
>
>> > Sent from my iPad
>
>> >
>
>> > On 8 Nov 2015, at 5:15 pm, Volokh, Eugene
>> > <VOLOKH@law.ucla.edu<mailto:VOLOKH@law.ucla.edu>> wrote:
>
>> >
>
>> >> I can’t speak about English law, but under American
>
>> >> law, battery
>
>> consists of intentional harmful or offensive contact. So if the
>
>> contact isn’t offensive enough to “a reasonable sense of personal
>
>> dignity” (and a flash probably doesn’t constitute offensive contact,
>
>> even if the taking of the photo that accompanies the flash is
>
>> offensive), it can still be actionable if it creates “any physical
>
>> impairment of the condition of another's body, or physical pain or
>> illness.” Or am I missing something?
>
>> >>
>
>> >>
>
>> >>
>
>> >> Eugene
>
>> >>
>
>> >>
>
>> >>
>
>> >> From: Penelope Watson [mailto:penelope.watson@mq.edu.au]
>
>> >> Sent: Saturday, November 07, 2015 10:00 PM
>
>> >> To: Kleefeld, John; Philip Girard/osgoode; Volokh, Eugene;
>
>> obligations@uwo.ca<mailto:obligations@uwo.ca>
>
>> >> Subject: Re: Projecting message onto side of another's building:
>
>> >> trespass,
>
>> nuisance, something else?
>
>> >>
>
>> >>
>
>> >>
>
>> >> Hi All,
>
>> >>
>
>> >>
>
>> >>
>
>> >> The pitfalls of top-of-the -head replies! Sorry have just re-read
>
>> >> Kaye v
>
>> Robertson and I got it wrong. The trespass/ battery argument was run
>
>> by Pl as one of many causes of action, but he was unsuccessful on
>
>> that. He succeeded on malicious falsehood instead (falsely implicitly
>
>> representing that Pl had consented to the pics), which provided the
>
>> basis for an interlocutory injunction to restrain publication.
>
>> >>
>
>> >>
>
>> >>
>
>> >> Glidewell LJ 's argument re why battery fails is odd tho. see the
>> >> following:
>
>> >>
>
>> >>
>
>> >>
>
>> >> Pl's case re trespass to person 'is that the taking of the
>
>> >> flashlight photos may
>
>> well have caused distress to Mr Kaye and set back his recovery, and
>
>> thus caused him injury. In this sense it can be said to be a
>
>> battery... [counsel] could not refer us to any authority...
>
>> nevertheless I am prepared to accept that it may well be the case that
>
>> if a bright light is deliberately shone into another person's eyes
>
>> and injures his sight, or damages him in some other way, this may be
>
>> in law a battery. But in my view the necessary effects are not established
>> by the evidence in this case...'
>
>> >>
>
>> >>
>
>> >>
>
>> >> Since when does battery require proof of harm?
>
>> >>
>
>> >> Cheers
>
>> >>
>
>> >> Penelope
>