Nancy Moore, ‘Intent and Consent in the Tort of Battery: Confusion and Controversy’

Abstract:
“…. This article demonstrates that the current confusion and controversy over battery law doctrine is far more extensive than even these recent torts scholars have demonstrated. It extends beyond the element of intent and includes uncertainty concerning the role of the plaintiff’s lack of actual or apparent consent – that is, whether consent is an affirmative defense or whether lack of consent is an element of the plaintiff’s prima facie case – and the relationship between intent and lack of consent. Moreover, this confusion and controversy is reflected not only in modern battery court opinions, but also in the cursory and contradictory treatment given to battery law in most torts casebooks and treatises. Finally, despite the ALI’s assumption that the Restatement provisions have been widely adopted, there are many jurisdictions where courts are formulating battery doctrine using terminology that departs significantly from the Restatement provisions …”

Moore, Nancy J., Intent and Consent in the Tort of Battery: Confusion and Controversy (February 21, 2012). Boston Univ. School of Law, Public Law Research Paper No. 12-07.

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