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- Title
HOW AN OLD TORT BECAME NEW: THE CASE OF OFFENSIVE BATTERY.
- Authors
Abraham, Kenneth S.; White, G. Edward
- Abstract
Offensive battery--an intentional touching that does not cause physical harm--is an ancient tort, having been actionable for centuries under the old common law writ of trespass. When the forms of action were abolished in the second half of the nineteenth century, battery continued as a separate cause of action. Offensive battery was soon recognized in the first Restatement of Torts in cases involving physical contacts that are "offensive to a reasonable sense of personal dignity." Although, for many decades, there were few cases alleging this form of battery, it was also included in the second and third Restatements of Torts. Around 1985, however, the number of cases alleging offensive battery increased dramatically. This Article describes how the old tort became a new one. It chronicles the history of offensive battery, breaks down the characteristics of the cases that were reported after 1985, and offers explanations for the transformation of the old tort. Two explanations stand out. First, many of the modern cases involve offensive sexual touching of female plaintiffs. Heightened sensitivity to this wrong and increased receptivity to suits alleging it are, in our view, part of the explanation for the increased number of cases. The other part of the explanation involves the synergy between offensive battery and the other causes of action with which offensive battery is usually allied in the modern cases. Whether in cases involving Title VII sex discrimination, law enforcement use of excessive force, or cases involving other alleged wrongs, the offensive battery claim gains normative weight through its linkage with larger narratives of wrongful conduct, and the larger narratives gain normative weight through their linkage with offensive battery. In short, the "new" tort of offensive battery typically is not brought as a freestanding claim, but is employed as just one weapon in an arsenal in which separate causes of action are allied together in the same suit.
- Subjects
CAUSES of action; SEX discrimination; WEIGHT gain; HISTORICAL source material; TORTS
- Publication
DePaul Law Review, 2024, Vol 73, Issue 2, p185
- ISSN
0011-7188
- Publication type
Article