Assault Opinion Cites Torts 2d and Torts 3d Draft
In a recent case of an assault and battery claim, the U.S. District Court for the Northern District of Ohio Western Division cited both Restatement of the Law Second, Torts, and Restatement of the Law Third, Torts: Intentional Torts to Persons (Discussion Draft ).
The case considered the claim of a law professor, who accused a colleague of grabbing his shoulder in a “strong and tight fashion.” The defendant admitted to touching the plaintiff, but only to guide him to a faculty lounge so they could have a discussion.
The case examined an essential element of torts – intent.
“A person is subject to liability for battery when he acts intending to cause a harmful or offensive contact, and when a harmful contact results. Contact which is offensive to a reasonable sense of personal dignity is offensive contact.” Love v. City of Port Clinton, 37 Ohio St. 3d 98, 99 (1988) (citing Restatement (Second) of Torts §§ 19, 25 (1965)). “In order that a contact be offensive to a reasonable sense of personal dignity, it must be one which would offend the ordinary person and as such one not unduly sensitive as to his personal dignity. It must, therefore, be a contact which is unwarranted by the social usages prevalent at the time and place at which it is inflicted.” Restatement (Second) of Torts § 19.
The defendant argued that although he did touch the plaintiff, it was contact that would not offend an ordinary person in a normal context. He noted that “it’s implicit when people talk and they put their hand on your shoulder, direct you to a seat, that there’s consent.” He “did not intend to harm, offend, or place fear” in the plaintiff.
Liability for assault requires that the actor actually intend to place another in apprehension of a harmful or offensive contact. See Smith v. John Deere Co., 83 Ohio App. 3d 398, 406 (1993); see also Restatement (Third) of Torts: Intentional Torts to Persons § 103 cmt. f (Discussion Draft 2014) (“For assault, the actor must intend to cause another to apprehend that a harmful or offensive contact is imminent. Intent merely to cause another to apprehend that a contact is imminent is not enough.”).
The Court ruled that “there is no evidence that the contact was either physically harmful or offensive to a reasonable sense of dignity.” The case was dismissed.
