California Civil Jury Instructions (CACI)

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];

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

Directions for Use

Give the bracketed words in element 3 and the last bracketed element only 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

  • “A battery is any intentional, unlawful and harmful contact by one person with the person of another… A harmful contact, intentionally done is the essence of a battery. A contact is ‘unlawful’ if it is unconsented to.” (Ashcraft v. King (1991) 228 Cal.App.3d 604, 611 [278 Cal.Rptr. 900], internal citations omitted.)
  • “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].)
  • Restatement Second of Torts, section 13 provides:

    An actor is subject to liability to another for battery if

    (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and

    (b) a harmful contact with the person of the other directly or indirectly results.

  • “ ‘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.)
  • Civil Code section 3515 provides: “He who consents to an act is not wronged by it.”
  • “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, supra, 228 Cal.App.3d at pp. 609—610.)
  • “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.)
  • Restatement Second of Torts, section 19 provides: “A bodily contact is offensive if it offends a reasonable sense of personal dignity.”
  • “ ‘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.)

Secondary Sources

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

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 (Thomson West) §§ 12:7—12:9