California Jury Instruction CACI 1300 Battery—Essential Factual Elements

1300. Battery—Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] committed a battery.

To establish this claim, [name of plaintiff] must prove all of the following:

1. That [name of defendant] [touched [name of plaintiff]] [or] [caused [name of plaintiff] to be touched] with the intent to harm or offend [him/her/nonbinary pronoun];
2. That [name of plaintiff] did not consent to the touching; [and]
3. That [name of plaintiff] was harmed [or offended] by [name of defendant]’s conduct[./; and]

[4. That a reasonable person in [name of plaintiff]’s situation would have been offended by the touching.]

New September 2003; Revised October 2004

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Nakase Wade | California Business Lawyers & Corporate Lawyers

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Directions for Use

Give the bracketed words in element 3 and element 4 if the offensive nature of the conduct is at issue. In most cases, it will be clear whether the alleged conduct was offensive. The offensive nature of the conduct will most likely not be at issue if the conduct was clearly harmful.

For a definition of “intent,” see CACI No. 1320, Intent.

Sources and Authority

• Consent as Defense. Civil Code section 3515.
• “The essential elements of a cause of action for battery are: (1) defendant touched plaintiff, or caused plaintiff to be touched, with the intent to harm or offend plaintiff; (2) plaintiff did not consent to the touching; (3) plaintiff was harmed or offended by defendant’s conduct; and (4) a reasonable person in plaintiff’s position would have been offended by the touching.” (So v. Shin (2013) 212 Cal.App.4th 652, 669 [151 Cal.Rptr.3d 257] [citing this instruction].)
• “A battery is a violation of an individual’s interest in freedom from intentional, unlawful, harmful or offensive unconsented contacts with his or her person.” (Rains v. Superior Court (1984) 150 Cal.App.3d 933, 938 [198 Cal.Rptr. 249].)
• “Although it is not incorrect to say that battery is an unlawful touching, . . . it is redundant to use ‘unlawful’ in defining battery in a jury instruction, and may be misleading to do so without informing the jury what would make the conduct unlawful.” (Barouh v. Haberman (1994) 26 Cal.App.4th 40, 45 [31 Cal.Rptr.2d 259], internal citation omitted.)
• “The crimes of assault and battery are intentional torts. In the perpetration of such crimes negligence is not involved. As between the guilty aggressor and the person attacked the former may not shield himself behind the charge that his victim may have been guilty of contributory negligence, for such a plea is unavailable to him.” (Bartosh v. Banning (1967) 251 Cal.App.2d 378, 385 [59 Cal.Rptr. 382].)

• “ ‘It has long been established, both in tort and criminal law, that “the least touching” may constitute battery. In other words, force against the person is enough; it need not be violent or severe, it need not cause bodily harm or even pain, and it need not leave any mark.’ ” (People v. Mansfield (1988) 200 Cal.App.3d 82, 88 [245 Cal.Rptr. 800], internal citations omitted.)
• “[T]he tort of battery generally is not limited to direct body-to-body contact. In fact, the commentary to the Restatement Second of Torts clearly states that the ‘[m]eaning of “contact with another’s person” ’ . . . does not require that one ‘should bring any part of his own body in contact with another’s person……… [One] is liable [for battery] in this Section if [one] throws a substance, such as water, upon the other ……. ’ ” (Mount Vernon Fire Ins. Co. v. Busby (2013) 219 Cal.App.4th 876, 881 [162 Cal.Rptr.3d 211].)

• “The element of lack of consent to the particular contact is an essential element of battery.” (Rains, supra, 150 Cal.App.3d at p. 938.)
• “As a general rule, one who consents to a touching cannot recover in an action for battery……. However, it is well-recognized a person may place conditions on the consent. If the actor exceeds the terms or conditions of the consent, the consent does not protect the actor from liability for the excessive act.” (Ashcraft v. King (1991) 228 Cal.App.3d 604, 609-610 [278 Cal.Rptr. 900].)
• “In an action for civil battery the element of intent is satisfied if the evidence shows defendant acted with a ‘willful disregard’ of the plaintiff’s rights.” (Ashcraft, supra, 228 Cal.App.3d at p. 613, internal citation omitted.)
• “ ‘The usages of decent society determine what is offensive.’ ” (Barouh, supra, 26 Cal.App.4th at p. 46, fn. 5, internal citation omitted.)
• “Even though pushing a door cannot be deemed a harmful injury, the pushing of a door which was touching the prosecutrix could be deemed an offensive touching and a battery is defined as a harmful or offensive touching.” (People v. Puckett (1975) 44 Cal.App.3d 607, 614-615 [118 Cal.Rptr. 884].)
• “ ‘If defendant unlawfully aims at one person and hits another he is guilty of assault and battery on the party he hit, the injury being the direct, natural and probable consequence of the wrongful act.’ ” (Singer v. Marx (1956) 144 Cal.App.2d 637, 642 [301 P.2d 440], internal citation omitted.)

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Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 381-416

Chin et al., California Practice Guide: Employment Litigation, Ch. 5-I, Assault And Battery, fl 5:656 et seq. (The Rutter Group)

3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.01[3] (Matthew Bender)

6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.13 (Matthew Bender)

2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.21 (Matthew Bender)

1 California Civil Practice: Torts §§ 12:7-12:9 (Thomson Reuters)