Chapter 7 BATTERY

• Jurisdiction: North Carolina

7 BATTERY

A. Definition

Battery is the offensive touching of the person of another without his or her consent.¹ An action for battery may also exist where the defendant, in the accomplishment of a legitimate purpose such as justifiable arrest, uses force excessive under the given circumstances.²

B. Elements

In order to establish an action for assault, a plaintiff must show that:

(1) The defendant intended to cause an offensive or harmful physical contact with the plaintiff,
(2) Such contact with the plaintiff occurred, and
(3) Such contact occurred without the plaintiff's consent.³

C. Elements Defined

1. Intent to Cause Offensive or Harmful Physical Contact with Plaintiff

In order to prove battery, the plaintiff must show the intent to act on the part of the defendant.⁴ In particular, the defendant must intend to cause harmful or offensive contact.⁵ In contrast, an intent to injure need not be proven.⁶ An employer may be liable for battery committed by its employee if it authorized the tortious behavior, if the act occurred while the employee was acting within the scope of his employment, or if the employer ratified the conduct after the fact. An employer can ratify tortious conduct only if it had knowledge of all material facts and showed an intention to ratify the act by words or conduct, or by failing to act to correct the tortious conduct.⁷

2. Contact Occurred

The contact necessary for battery does not need to be directly with the plaintiff's person; rather, contact with something closely associated with the plaintiff's person is sufficient.⁸

3. No Consent to Contact by Plaintiff

A battery occurs when the plaintiff is offensively touched against the plaintiff's will.⁹ The issue in a battery action is the absence of consent to contact on the part of the plaintiff.¹⁰

D. Defenses

The statute of limitations for the tort of battery is three years.¹¹ A defendant in a battery action may also invoke the privilege of defense of self or defense of a family member.¹² Consent by the plaintiff may be a defense in a battery action.¹³

Public official immunity may also be an available defense.¹⁴

E. Damages

Actual damage is not an essential element of a battery.¹⁵

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Notes:

^[1] City of Greenville v. Haywood, 130 N.C. App. 271, 502 S.E.2d 430 (1998), review denied, 349 N.C. 354, 525 S.E.2d 449 (1998). Note that unauthorized medical procedures may also amount to assault or battery. See Nelson v. Patrick, 58 N.C. App. 546, 293 S.E.2d 829, appeal after remand, 73 N.C. App. 1, 326 S.E.2d 45 (1982).

^[2] Thomas v. Sellers, 142 N.C. App. 310, 542 S.E.2d 283 (2001).

^[3] Britt v. Hayes, 142 N.C. App. 190, 541 S.E.2d 761 (2001); Russ v. Great Am. Ins. Cos., 121 N.C. App. 185, 464 S.E.2d 723 (1995); Hawkins v. Hawkins, 101 N.C. App. 529, 400 S.E.2d 472 (1991), review allowed, 329 N.C. 496, 407 S.E.2d 533 (1991), aff'd, 331 N.C. 743, 417 S.E.2d 447 (1992); Andrews v. Peters, 75 N.C. App. 252, 330 S.E.2d 638, disc. review denied, 315 N.C. 182, 337 S.E.2d 65 (1985), aff'd, 318 N.C. 133, 347 S.E.2d 409 (1986); appeal after remand, 89 N.C. App. 315, 365 S.E.2d 709 (1988).

^[4] Britt v. Hayes, 142 N.C. App. 190, 541 S.E.2d 761 (2001); Russ v. Great Am....