How an Old Tort Became New: The Case of Offensive Battery

This paper, prepared for the 2023 Clifford Symposium on “New Torts” at DePaul Law School, addresses the tort of offensive battery. This is an ancient tort, having been actionable for centuries under the old common law writ of trespass. When the forms of action were abolished in the second half of the nineteenth century, it continued as a civil wrong. Offensive battery was recognized in the first Restatement of Torts in cases involving physical contacts that were “offensive to a reasonable sense of personal dignity.” Although for many decades there were few cases alleging this form of battery, it was also included in the second and third Restatements of Torts. Around 1985, the number of cases alleging offensive battery increased dramatically.

This Article describes how the old tort became a new one. It chronicles the history of offensive battery, breaks down the characteristics of the cases that were reported after 1985, and offers explanations for the transformation of the old tort. Two explanations stand out. First, many of the modern cases involve offensive sexual touching of female plaintiffs. Heightened sensitivity to this wrong and increased receptivity to suits alleging it are, in our view, part of the explanation for the number of increased cases. The other part of the explanation involves the synergy between offensive battery and the other causes of action with which offensive battery was allied in the modern cases. Whether in Title VII, law enforcement use of excessive force, or cases involving other alleged wrongs, the offensive battery claim gained normative weight through its linkage with the larger narrative of wrongful conduct, and the larger narrative gained normative weight through its linkage with offensive battery. In short, the “new” tort of offensive battery typically is employed as just one weapon in an arsenal in which separate causes of action are allied together.