5 Battery

• Library: Elements of Civil Causes of Action (SCBar) (2015 Ed.)

5 Battery

A. Definition

A battery is the actual infliction of any unlawful, unauthorized violence on the person of another, irrespective of its degree; it is unnecessary that the contact be by a blow, as any forcible contact is sufficient.¹

In a departure from prior law, the South Carolina Supreme Court applied collateral estoppel to bar a defendant from relitigating liability for assault and battery. The court said that a person who has been criminally convicted is bound by that adjudication in a later civil proceeding based on facts the same as those underlying the criminal conviction.²

Note that the South Carolina Supreme Court has explicitly refused to recognize a claim for "medical battery," in which there is a physical touching within the medical context, but an absence of consent or revocation of any consent. A patient who claims lack of consent must bring his or her action as a medical malpractice claim.³

B. Elements

(1) The infliction of any forcible contact on the person of another.⁴ An implied element is that the plaintiff's injuries were proximately caused by the defendant.⁵

C. Elements Defined

1. The Infliction of Forcible Contact

Physical injury is not an element of battery.⁶ While there must be touching, any forcible contact will suffice irrespective of its degree.⁷ Intent to inflict injury is not a necessary element in a civil action for battery.⁸

Ordinarily, an employer would not be liable for a battery committed by its employee. However, under the doctrine of respondeat superior, an employer may be liable for the acts of an employee who is acting within the scope of his or her employment. In most instances, a battery will be outside the scope of the employee's employment. For example, an employee was found to be acting outside the scope of his employment when he grabbed the plaintiff's arm in an apparent attempt to pull her into a hotel room. The court said the employee's "conduct was not reasonably necessary to accomplish the purpose of his employment, nor was it in furtherance" of the employer's business. Thus, the employer was not vicariously liable for the employee's actions.⁹

D. Defenses

The most common defense to an action for assault and/or battery is self-defense.¹⁰If a defendant acts in justifiable self-defense, he or she may not be held responsible for damages in an action for assault and battery.¹¹ The South Carolina Supreme Court has said that "[o]ne acting in self-defense to repel an unlawful attack is not guilty of assault; he may repel force with force and continue his self-defense as long as the danger apparently continues."¹² Provocation which does not amount in law to justification is not a defense to assault and battery.¹³ Words alone will not justify a battery.¹⁴ Thus, statements made by the plaintiff a few days before the incident at issue provided no legal justification for the defendant's conduct.¹⁵ And, where the plaintiff said "hit me" to the defendant shortly before the latter struck the former, the absence of an offer of physical violence negated any justification.¹⁶

The right to use reasonable force does not ordinarily include the use of a deadly weapon, but may where the conduct of the plaintiff produces in the mind of a person of "reasonable prudence and courage" apprehension of assault involving serious bodily harm.¹⁷ The defendant in his or her own place of business, or abode, is generally not required to retreat in the face of an assault in order to claim self-defense.¹⁸

By statute,¹⁹ a person who uses deadly force as permitted by law is justified in using that force and immune from civil action for the use of deadly force.²⁰ The law provides that anyone who is not engaged in an unlawful activity and who is attacked in another place where he or she has a right to be, including, but not limited to, his or her place of business, has no duty to retreat, but has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to prevent death or great bodily injury to him or herself or another person or to prevent the commission of a violent crime.²¹ The intent of the law is "to codify the common law Castle Doctrine which recognizes that a person's home is his castle and to extend the doctrine to include an occupied vehicle and the person's place of business."²² Immunity under the Act is to be decided prior to trial, and the proper standard for determining immunity is a preponderance of the evidence.²³

In Nauful v. Milligan,²⁴ the South Carolina Supreme Court said that assuming mutual combat would constitute a defense to a civil action for assault and battery, it was unavailable where the defendant testified he struck blows solely in response to derogatory comments made about his children. The court said for mutual combat to exist there must be a mutual intent and willingness to fight.²⁵ In criminal cases the court has said that self-defense is generally unavailable to one who kills another in mutual combat.²⁶ If, however, the party first withdraws and makes a good faith attempt to communicate by word or act a refusal to engage in further conflict, the right to self-defense is restored.²⁷

Comparative negligence is apparently not a defense to battery.²⁸

A police officer who uses reasonable force in effecting a lawful arrest is not liable for assault or battery.²⁹ Thus, a law enforcement officer was not liable when he used his Taser to subdue the plaintiff who was struggling with another officer, because use of the Taser was reasonable.³⁰ Sovereign immunity may apply where an officer considered an "arm of the state" is acting in his or her official capacity.³¹

While intent is not a necessary element of an action for battery, a federal court dismissed a claim for battery against a city because under the South Carolina Tort Claims Act,³²immunity for intentional torts has not been waived,³³ and therefore, the city had "immunity for the claims made against it for the intentional tort" of battery.³⁴

A defendant who enters a guilty plea — including an Alford plea³⁵ — in a criminal proceeding is collaterally estopped from litigating the issue in a subsequent civil action based on the same facts underlying the plea.³⁶

The statute of limitations applicable to injuries to the person or rights of another is three years for actions arising on or after April 5, 1988, and six years for those arising before that date.³⁷ Actions initiated under the provision must be commenced within three years after the plaintiff knew or by the exercise of reasonable diligence should have known that a cause of action existed.³⁸ Actions based on sexual abuse or incest are governed by a newly adopted statute of limitation.³⁹

E. Damages

Actual⁴⁰ and punitive⁴¹ damages have been awarded for battery.

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Notes:

^[1] Jones v. Winn-Dixie Greenville, Inc., 318 S.C. 171, 456 S.E.2d 429 (Ct. App. 1995); Gathers v. Harris-Teeter Supermarket, 282 S.C. 220, 317 S.E.2d 748 (Ct. App. 1984).

^[2] Doe v. Doe, 346 S.C. 145, 551 S.E.2d 257 (2001). The court noted an exception for convictions for traffic offenses under S.C. Code § 56-5-6160.

^[3] Linog v. Yampolsky, 376 S.C. 182, 656 S.E.2d 355 (S.C. 2008). The court was careful to observe that its holding did not imply that a patient had to produce expert testimony — as would be required in a medical malpractice action — in a civil battery claim where the touching occurred outside the medical context. The court expressed confidence that judges will be able to distinguish between professional services and acts falling outside the medical scope. Whether attorneys will attempt to muddy those waters remains to be seen.

^[4] Jones v. Winn-Dixie Greenville, Inc., 318 S.C. 171, 456 S.E.2d 429 (Ct. App. 1995); Gathers v. Harris-Teeter Supermarket, 282 S.C. 220, 317 S.E.2d 748 (Ct. App. 1984). See also Hubbard & Felix, The South Carolina Law of Torts, p. 416 (3d ed. South Carolina Bar, CLE Division 2004 with 2005 supp.) (battery has two elements...