TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Friday, July 22, 2016

Teaching Single Versus Dual Intent

I had an inquiry about teaching single and dual intent for battery and I want to appeal for your collective wisdom.  About the time I started teaching there was a robust list-serv discussion on this topic that I found helpful.  Given that the ALI is working on the Restatement of Intentional Torts right now, many of you may have thought about this recently.  I take the inquiry to be more about pedagogy than doctrine, but all tips are welcome.  How do you teach single versus dual intent?  How do you integrate it with purpose and substantial certainty?  Do you recommend any good sources for students?  Thanks!

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I did some research on this early on in my career, and determined that the only sensible answer is single intent. I found a law review article that dealt with the problem of the jokester. If dual intent is the rule, then the practical joker will always get off since his intent was to be funny, not harm. I later discovered that single intent is also what the Board of Bar Examiners uses in the state where my law school is located. The problem is created by the articulation most people use for battery: an intentional harmful or offensive touching. I changed the articulation to avoid that problem: an intentional contact of another that results in harm or offense. By separating intent and harm, the dual intent problem goes away.

Posted by: Beau Baez | Jul 22, 2016 10:05:26 AM

With the utmost respect for the excellent work of the R3d Reporters, on this particular issue, I think there is a better, third way that avoids the problems associated with both single and dual intent. The case for this way -- according to which the requisite intent is an intent to cause a kind or mode of contact that is offensive according to prevailing social norms -- is laid out nicely by my co-author Ben Zipursky here:

Posted by: John Goldberg | Jul 25, 2016 12:53:45 PM

We cover single and dual intent in the new edition of casebook along with the Third Restatement's provisions. You can see this in chapter 8 in Dominick Vetri, Lawrence Levine, Joan Vogel, & Ibrahim Gassama, Tort Law and Practice, 5th ed. Carolina Press (2016) pp. 695-703, 711. We generally support the Third Restatement's position.

Posted by: Joan Vogel | Jul 26, 2016 9:26:20 PM

As most readers probably know, the Restatement Third of Intentional Torts has a provision endorsing single intent, sec. 102 (Tent. Draft No. 1), which was approved at the 2015 annual meeting. The comments and illustrations to that section contain significant discussion of single v. dual intent. See, for example, Illustration 2:

2. Stephanie approaches Carol, a new coworker in her office, from behind. “You look tense!” Stephanie declares, and immediately begins giving Carol a vigorous neck massage. When Carol objects, Stephanie promptly ends the massage. The massage injures Carol’s neck and requires her to miss several weeks of work. Stephanie is subject to liability to Carol for battery.

Posted by: Kenneth Simons | Jul 31, 2016 2:01:25 PM

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