According to Restatement of Torts, Second (I've only scratched the surface), to be liable for battery, the actor must have an intent, though the intent might not have been to bring about the specific damaging outcome. Both the harmful and offensive contact varieties of battery require a bad intent: §13 "An actor is subject to liability to another for battery if (a) he acts intending to cause a harmful or offensive contact...", and per §16, "If an act is done with the intention of inflicting upon another an offensive but not a harmful bodily contact...the actor is liable to the other for a battery although the act was not done with the intention of bringing about the resulting bodily harm". §18 Battery: Offensive Contact says more or less the same thing with "offensive" inserted. Furthermore,

§18(2) An act which is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for a mere offensive contact with the other's person although the act involves an unresonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

So, if A throws a dart at a dartboard while B is right next to it, and hits B in the eye, it would seem that this is not battery, and poor B might be out of luck.

I think this would be generic negligence, where §281 "The actor is liable for an invasion of an interest of another, if: (a) the interest invaded is protected against unintentional invasion...". The problem is, the description of the interest in freedom from harmful bodily contact only protects against the interest w.r.t. intentional contact, so where does the protection of that interest come from in terms of unintentional contact. Specifically: is there a general rule that every protection against an intentional invasion of interest entails a protection against unintentional invasion of that interest? (I assume the "duty" is a generic and universal one).

1 Answer 1


It is generic negligence. In most United States jurisdictions, Negligence is a tort requiring (1) duty, (2) breach of that duty, (3) but-for and proximate causation, and (4) harm. In most human interaction, one person has a duty to act as a reasonable person to avoid harming another person. So if you do something a reasonable person would not do, and that causes harm, you can be liable for the resulting harm. The reason for this is that you have the ability to control your activity, and you should be willing to engage in reasonable activities without risking civil liability. Thus it discourages unreasonable behavior if you have to pay for the harm that results from your lack of reasonable care.

Because negligence requires breach of duty under a reasonable person standard rather than requiring intent, it necessarily creates a sphere of protection around the invasion of interests recognized by intentional torts that also have harm as an element. However, that sphere of protection does not protect against all unintentional invasions, just against those unintentional invasions which are sufficient to support a case for negligence in a given jurisdiction.

  • Is it that the Restatement is incomplete, in not indicating which interests are protected against unintentional invasion – or is there some indication of interests that are not so protected? Assume WA state law: is there somewhere in Title 4 that says "Don't poke out an eye negligently" or "it's okay to defame negligently"? This is basically the "how would anyone ever know what the law is" question.
    – user6726
    Oct 17, 2016 at 1:46
  • Or an even closer comparison: is there a legally protected interest against negligent offensive contact (in WA state, or in general), and how would I find out?
    – user6726
    Oct 17, 2016 at 4:12
  • The Restatement is just a restatement. It is a very good source, but still a secondary source. To determine the law in a common-law jurisdiction, you need to evaluate multiple sources, because law can come from (or be incorporated into law by) constitutions, statutes, regulations, or case law. To find out of there is a legally protected interest against negligent offensive contact--which is not how laypeople or practitioners would phrase the question in practice--would involve searching those bodies of law and applying them to the sets of facts circumscribing the sphere of protected interests.
    – Tom
    Oct 17, 2016 at 12:27
  • The law of torts is mostly judge made case law based upon precedents ultimately traceable all of the way back to English common law prior to the American Revolution and only modified in select details by statutes enacted by the legislature. It is quite fact and situation specific. The Restatements, in theory, are a summary of the most important majority rules of this case law for judges to consider, but which are not binding.
    – ohwilleke
    Oct 21, 2016 at 8:13

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