29. Which of the following questions will NOT be an issue in the battery action?

The nonsmoker brought a battery action against the smoker.

An ordinance in a small town required all restaurants to designate smoking and nonsmoking sections for their customers. A cigarette smoker and a nonsmoker were seated at adjoining tables in a small restaurant. The smoker's table was in the smoking section, and the nonsmoker's table was in the nonsmoking section. When the smoker lit a cigarette, the nonsmoker politely requested that he not smoke, explaining that she had a severe allergy to cigarette smoke. The smoker ignored the nonsmoker's request and continued to smoke. As a result, the nonsmoker was hospitalized with a severe allergic reaction to the smoke.

Did the smoker intend to cause the nonsmoker’s contact with the cigarette smoke?
Does smoke have the physical properties necessary for making the kind of contact required for battery?
Is contact with cigarette smoke from a lawful smoking section in a restaurant the kind of contact one must endure as a voluntary restaurant patron?
Was the smoker’s conduct unreasonable under the circumstances?

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Liability for an intentional tort requires the plaintiff to prove that the defendant acted, with intent, and his action caused the result that gave rise to liability. To establish a battery claim, a plaintiff must prove that the defendant intentionally inflicted harmful or offensive bodily contact with the plaintiff's person. The defendant is liable not only for direct contact but also indirect contact, i.e., it will be sufficient if he sets in motion a force that brings about harmful or offensive contact to the plaintiff's person. Intent can be established by showing the defendant's intent to cause EITHER: (i) a harmful or offensive bodily contact; or (ii) an imminent apprehension by the plaintiff of a harmful or offensive bodily contact, which may be established by intent to commit an assault (i.e., if the defendant intended merely to put the plaintiff in fear of an imminent harmful or offensive contact, it is sufficient for a battery claim, regardless of whether the defendant intended to make actual contact).

A defendant is not liable for an otherwise tortious act if the plaintiff consented to the defendant's act. The doctrine of consent is generally of importance only in intentional tort cases. Implied consent may exist in one of two possible ways: (i) apparent; or (ii) implication by law. Apparent consent is where it reasonably seemed to the defendant that the plaintiff consented, regardless of the plaintiff's subjective state of mind.

Exam Tip: The call of the question asks, «Which of the following questions will NOT be an issue in the battery action?» Therefore, the correct answer will describe an issue that is IRRELEVANT to a battery claim. The wrong answers, which may be eliminated, will describe issues that ARE relevant to a battery claim.

D is correct. The reasonableness of the smoker's conduct is irrelevant because a battery claim requires that the defendant intended to make contact, directly or indirectly, with the plaintiff's person. Whether the defendant's actions were reasonable is not relevant because this is an intentional tort. The reasonableness of the defendant's conduct would be relevant in a negligence action.

A is incorrect. This is a relevant question, and therefore incorrect because a successful battery claim would require the non-smoker to show that the smoker did intend to cause contact between the non-smoker and the cigarette smoke.

B is incorrect. This is also a relevant question, and therefore incorrect because a battery claim requires a showing that, at a minimum, the defendant made indirect contact with the plaintiff by setting in motion of a force that brings about harmful or offensive contact to the plaintiff's person. Here, it would thus be relevant to determine whether the smoke exhaled by the smoker constituted setting in motion a force (the smoke) that brought about the harmful contact with the non-smoker's person.

C is incorrect. Finally, this is also relevant because it raises a potential defense that would shield the smoker from liability. If the defendant's smoking did satisfy the elements of battery, he could nevertheless raise the defense of consent. That is, the smoker could argue that the non-smoker impliedly consented to contact with cigarette smoke by voluntarily entering a restaurant that had a legally-sanctioned smoking section in a shared space with a non-smoking section.

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29. Which of the following questions will NOT be an issue in the battery action?

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