Comment e. Contact with the person of another. In many battery cases, an actor brings about a harmful or offensive “contact” by directly touching the body of the plaintiff—for example, striking or pushing the plaintiff, or performing a medical operation upon the plaintiff. However, the contact requirement is also satisfied in cases where the actor directly contacts something closely connected to plaintiff’s body or where the actor indirectly contacts the plaintiff’s body. In these cases, too, the actor intentionally and substantially interferes with the plaintiff’s interest in autonomy, or freedom of choice over his body. Moreover, when the contact is offensive, it also interferes with plaintiff’s dignitary interest. When the contact is harmful, it interferes with plaintiff’s interest in security from bodily harm.

Thus, a touching is legally sufficient if the actor contacts, not the plaintiff’s body, but any object that is closely and physically connected to plaintiff’s body and thus is customarily considered to be within the scope of plaintiff’s right of bodily autonomy. Examples include an object that the plaintiff is holding, or the plaintiff’s clothing, or the chair upon which plaintiff is sitting. Such contacts with objects that are closely and physically connected to plaintiff’s body are more likely to result in offensive batteries than in harmful ones; but in either case, the contact requirement is satisfied.

Illustration:

1. Barney is holding a plate in a restaurant buffet line, about to obtain food. Martha, the restaurant manager, snatches the plate from his hand and angrily announces, in crude language, that she will not serve food to people of his kind. Martha is subject to liability to Barney for offensive battery.

A contact is also legally sufficient when the actor indirectly contacts the plaintiff’s body. If an actor, instead of physically touching the plaintiff, fires a gun or throws a stone or other object at the plaintiff, and the bullet or object strikes the plaintiff, this unquestionably suffices. So does pulling a chair out from under the plaintiff as she is in the process of sitting down, causing the plaintiff’s body to hit the ground. Such contacts, though indirect, still invade the plaintiff’s right of bodily autonomy.

The contact requirement is satisfied in cases where the actor causes the distribution of substances, such as hazardous or toxic chemicals or pollutants, that contact the plaintiff in an offensive or harmful way. Of course, in all battery cases, the actor must also satisfy the intent requirement, acting either with the purpose of causing a contact or with substantially certain knowledge that a contact will occur. See Comment e. The mere fact that defendant caused a contact with the plaintiff that actually offended or harmed the plaintiff is insufficient for liability. Thus, distribution of a pollutant is not a battery, even if it contacts and harms plaintiff, unless the actor has either the purpose to thereby contact plaintiff or the knowledge that the pollutant will contact the individual plaintiff. See Restatement Third, Torts: Liability for Physical and Emotional Harm § 1, Comment e.

If the actor supplies another with a food or drug that the actor knows the other will ingest, this satisfies the contact requirement. However, the circumstances surrounding the person’s decision to ingest the item will often demonstrate that he or she consents to the contact. When legally adequate consent is lacking, and when the other elements of battery are satisfied, the person who ingests the food or drug has a viable battery claim. 

Illustrations:

2. Julio, a guest in Marco’s house, asks for a glass of milk. Marco reaches into his refrigerator and pours Julio a glass, disclosing that the expiration date for the milk was two weeks ago. Julio drinks some milk and is disgusted by the taste. Because Julio has consented to the contact, Marco is not liable for an offensive battery (nor is he liable for a harmful battery if Julio becomes physically ill).

3. Julie, a guest in Mark’s house, asks for a glass of milk. Mark reaches into his refrigerator and pours Julie a glass. Mark knows that the milk is spoiled but believes it will be amusing to see how Julie reacts to drinking it. Julie drinks some milk and is disgusted by the taste. Mark is subject to liability for an offensive battery (or for a harmful battery if Julie becomes physically ill). 

The contact requirement, although minimal, is a genuine requirement. An actor does not satisfy the requirement simply because his or her conduct causes the plaintiff harm or offense. Such a broad interpretation would trivialize the requirement. For example, in Illustration 1, if Martha approaches Barney without touching him or anything he is holding and makes the same highly insulting remarks, she is not liable for offensive battery. The contact requirement functions as a limit in harmful battery cases as well.

Illustration:

4. Thelma, a prison guard, has a personal dislike of Angela, a prison inmate. In order to make Angela physically ill, Thelma turns off the heat in Angela’s cell for three days. As a result, Angela contracts pneumonia. Thelma is not liable to Angela for battery.

This Illustration reveals the limits of battery liability. However, § 104 of this Restatement provides an independent basis for liability on these facts.

In offensive-battery cases, several issues arise concerning the contact requirement. First, although the definition of “contact” is distinct from the definition of “offense,” the minimal nature of a contact nevertheless may help demonstrate, in conjunction with other circumstances of the case, that the contact does not qualify as “offensive to a reasonable sense of dignity.”

Illustration:

5. Barney is holding a plate in a restaurant buffet line, about to obtain food. Noticing that the plate is badly cracked, the restaurant manager Martha snatches the plate from his hand, explaining that she was worried that he would cut himself. Martha is not liable to Barney for offensive battery.

This Illustration should be contrasted with Illustration 1.

Second, if the actor’s conduct does not implicate the interest of the plaintiff in bodily autonomy, then that conduct, no matter how offensive, fails to satisfy the contact requirement. Sending the plaintiff a series of highly obnoxious e-mails or tweets or screaming obscenities at plaintiff is not an offensive battery. In sufficiently extreme cases, however, highly offensive conduct can satisfy the criteria of the tort of intentional infliction of emotional harm. See Restatement Third, Torts: Liability for Physical and Emotional Harm § 46.

…

[Excerpt from Reporters’ Note: ] 

Courts have permitted battery claims based on a wide variety of types of indirect contact with the plaintiff’s person. A leading case is Leichtman v. WLW Jacor Commc’ns, Inc., 634 N.E.2d 697, 699 (Ohio Ct. App. 1994) (blowing smoke in plaintiff’s face is sufficient contact for battery). Restatement Second, Torts § 18, Comment c, states that causing a foreign substance (such as a filthy towel) to make offensive contact with someone can constitute a battery. Other cases include: Angus v. Ventura, 1999 WL 33287, at *3 (Ohio Ct. App. Jan. 27, 1999) (spitting on plaintiff’s face); Buckner v. Bryant, 2013 WL 1220703, at *4 (E.D. Ky. Mar. 25, 2013) (defendant put a piece of lettuce down his pants and then placed it in plaintiff’s sandwich; “This series of events indicates that particles from [defendant’s] body … [that were] found to have ‘contaminated’ the food … came into physical contact with plaintiff through his ingestion of the sandwich”; sufficient evidence of battery under Kentucky law); Melson v. Vista World Inc. & Assoc., 2012 WL 6002680, at *11-12 (E.D. La.) (sufficient contact to satisfy offensive battery where defendant moved plaintiff’s desk to location behind the office door, and over three-and-a-half weeks, plaintiff was struck by the door 10-15 times per day); Hull v. Pearles, 2007 WL 5582371, at *3 (Ohio Com. Pl.) (allegation of defendant’s “deliberate sticking or taping of at least seven (7) post-it notes, one-by-one, onto [plaintiff’s] clothing and skin, on her shoulder, down her arm and near her wrist, forcefully pressing them on, so that they would remain affixed to the Plaintiff’s clothing or skin,” states a prima facie offensive-battery claim; “While the touching may have been slight, it was still a touching.”); Duprey v. J.C. Penney Co., Inc., 36 Va. Cir. 88, at *3 (1995) (store manager allegedly forced plaintiff customers to clean up urine with paper towels and their bare hands; sufficient contact for offensive-battery claim). Cf. Pechan v. Dynapro, Inc., 622 N.E.2d 108, 118-119 (Ill. App. Ct. 1993) (upholding dismissal of battery claim because employees did not intend that the smoke touch nonsmokers).

A recent Virginia criminal case held that the defendant was guilty of a battery for intentionally shining a laser pointer into the victim’s eye. Adams v. Commonwealth, 534 S.E.2d 347, 351 (Va. Ct. App. 2000). Rejecting the defendant’s argument that the laser, having “no mass,” could not “physically touch” the victim, the court held that “to prove a touching, the evidence must prove that the [intangible] substance made objectively offensive or forcible contact with the victim’s person resulting in some manifestation of a physical consequence or corporeal hurt.” The laser caused “a stinging sensation” in the victim’s eye, which was a sufficient physical effect to satisfy the contact requirement of battery. Subsequent cases have affirmatively cited Adams when relating principles of Virginia civil-battery law. See Tatum v. Shoemaker, 2012 WL 899633, at *5 (W.D. Va. Mar. 16, 2012); Jackson v. Fletcher, 7:09CV00408, 2011 WL 197954, at *1, 10-11 (W.D. Va. Jan. 18, 2011) (the court, applying Virginia law, deemed the following indirect contacts batteries: spraying Freon on the plaintiff, placing lit cigarettes in his pockets, throwing fly-trap bait on him, shocking his testicles with a device, throwing flammable liquids on him, and pressing a habanero pepper into a wound on his lip; the court cites Adams for the proposition that “contact with an intangible substance may give rise to a battery claim”).

However, the mere fact that an actor’s conduct causes a physical effect on the plaintiff is insufficient to satisfy the contact requirement. See, e.g., Regan v. Upper Darby Township, 363 F. App’x 917, 921 (3d Cir. 2010) (plaintiff cannot recover for battery or assault based on defendant screaming expletives at the plaintiff, because there was neither contact nor reasonable fear of imminent harmful contact; applying Pennsylvania law). Similarly, cyberbullying, or posting intentionally abusive comments on social media that are directed at particular persons, would not satisfy battery’s contact requirement. However, in rare cases, such comments might result in liability under § 104, if made with the purpose and effect of causing plaintiff bodily harm. See § 104, Illustration 8. Moreover, a cyber attack that brings about harm in an analogous manner to a conventional physical attack and that is accompanied by the requisite intent to contact the plaintiff could conceivably subject the actor to battery liability. See Harold Koh, International Law in Cyber Space, 54 Harv. Int’l L.J. Online 1, 4 (2014) (arguing that “if the physical consequences of a cyber attack work the kind of physical damage that dropping a bomb or firing a missile would, that cyber attack should equally be considered a use of force” for purposes of international law; and providing as an example “operations that open a dam above a populated area causing destruction”).

Thus, playing music very loudly, knowing that this will cause offense to one’s neighbors, is not a battery. Granted, given the physics of sound production, the music has transmitted waves or vibrations from the source to the listener. But this is not the type of physical contact that suffices for battery liability. Contrast a case in which the actor suddenly approaches the plaintiff, places a bullhorn or radio at plaintiff’s ear, and severely startles the plaintiff by the very loud noise, injuring plaintiff’s eardrum. Such a case might satisfy the contact requirement. Playing music loudly is offensive because of its psychological effects (including causing annoyance and serious distraction) apart from the physical manner by which it has those effects, while playing music so loudly that it startles a person and injures a person’s eardrum is offensive in part because of the physical manner of the contact. But see Iverson v. Atlas Pacific Engineering, 191 Cal. Rptr. 696, 699-700 (Cal. Ct. App. 1983) (coworker allegedly repeatedly slammed the floor above plaintiff’s office with a sledge hammer, causing extremely loud sounds that damaged the plaintiff’s hearing; held, although the defendant’s actions fell under California’s intentional-tort exception to the workers’-compensation exclusive statutory remedy, they “may not” constitute a battery). If understood as a holding that such conduct is insufficient to satisfy the contact requirement, Iverson is questionable.

Illustration 4 is based on Skandha v. Savoie, 811 F. Supp. 2d 535, 541 (D. Mass. 2011) (Massachusetts law; “Skandha’s allegations that he was subjected to uncomfortably cold temperatures in his cell [due to defendants’ turning off heat] do not constitute a viable claim for assault and battery because there is no allegation that Skandha was physically touched.”). The facts in this Illustration would support liability under § 104. It is also a separate question whether the inmate in this Illustration has any other viable civil, statutory, or constitutional remedy against the prison guard.

The contact requirement is in addition to the requirement that the plaintiff suffer harm or offense. If, contrary to the hosts’ expressed wishes, a caterer serves nonkosher food at a wedding, a guest might well suffer legally cognizable offense, but the caterer is subject to battery liability only if the guest contacts or ingests the nonkosher food. See Siegel v. Ridgewells, Inc., 511 F. Supp. 2d 188, 194 (D.D.C. 2007) (no battery liability where shrimp and other nonkosher sushi was served, because no proof that plaintiff came into contact with or ingested the nonkosher food).

Even if an indirect contact is sufficient for battery, the question remains whether the contact itself was offensive or harmful, and whether the actor had the requisite intent for battery. When the contact is quite minimal, offensiveness is often more difficult to prove. See, e.g., Workman v. United Fixtures Co., 116 F. Supp. 2d 885, 896 (W.D. Mich. 2000) (applying Michigan law; although grabbing a piece of paper from the plaintiff’s hand “may” satisfy the “contact” element of battery, “nothing in the record suggests that [defendant’s] alleged actions amounted to an offensive contact battery”).

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