Wagner v. State of Utah, Ut Dept of Human Services, & Ut St Development Center

2005 UT 54
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
Tracy D. Wagner and No. 20040405
Robert W. Wagner,
Plaintiffs and Petitioners,
v.
State of Utah, Utah Department of
Human Services, and Utah State F I L E D
Development Center,
Defendants and Respondents. August 30, 2005
---
Fourth District, Provo Dep’t
The Honorable Anthony W. Schofield
No. 020403185
Attorneys: D. David Lambert, Leslie W. Slaugh, Ryan D.
Tenney, Provo, for plaintiffs
Mark L. Shurtleff, Att’y Gen., Barry G. Lawrence,
Nancy L. Kemp, Asst. Att’ys Gen., Salt Lake City,
for defendants
---
On Certiorari to the Utah Court of Appeals
WILKINS, Associate Chief Justice:
¶1 Tracy and Robert Wagner seek review of the court of
appeals’ ruling that the trial court properly granted a rule
12(b)(6) motion dismissing their suit against the State. The
Wagners’ suit, which sought recovery for injuries Mrs. Wagner
sustained when a mentally handicapped man attacked her while he
was in the custody of state employees, was dismissed at the trial
court, and affirmed at the court of appeals, on the ground that
the attack constituted a battery, a tort for which the State has
retained immunity from suit. The Wagners then petitioned this
court for certiorari, which we granted. We now affirm.

No. 20040405 2
BACKGROUND
¶2 When reviewing a 12(b)(6) motion, we recite the facts
in a light most favorable to the non-moving party, though there
is no dispute in this case as to the facts. Higgins v. Salt Lake
County, 855 P.2d 231, 233 (Utah 1993).
¶3 Tracy Wagner was standing in a customer service line at
a K-Mart store in American Fork, Utah, when she was suddenly and
inexplicably attacked from behind. The Wagners’ alleged that Sam
Giese, a mentally disabled patient of the Utah State Development
Center (“USDC”), “became violent, took [Mrs. Wagner] by the head
and hair, threw her to the ground, and otherwise acted in such a
way as to cause serious bodily injury to her.”
¶4 USDC employees had accompanied Mr. Giese to K-Mart as
part of his treatment program and had remained in K-Mart to
supervise him. While this particular episode of violence was
sudden, it was not altogether unpredictable. Mr. Giese had a
history of violent conduct and presented a potential danger to
the public if not properly supervised.
¶5 Mrs. Wagner and her husband subsequently filed a
complaint against USDC and the Utah Department of Human Services,
the state agency under which USDC operates, for failing to
“properly supervise the activity of” Mr. Giese while he was in
its care. Because the defendants to this matter are all
governmental entities, they moved to dismiss the complaint under
Utah Rule of Civil Procedure 12(b)(6) for failure to state a
claim, arguing that Mrs. Wagner’s injuries arose out of a
battery, a tort for which the government is immune from suit.
Thus, under the Governmental Immunity Act, Utah Code Ann. § 63-
30-10(2) (Utah 1997) (repealed 2004), the defendants could not be
held liable for injuries arising out of the battery here. The
district court agreed with the government and dismissed the
Wagners’ complaint, holding that because Giese initiated a
contact with “deliberate” intent, his attack constituted a
battery and the government was immune under the statute.
¶6 The Wagners appealed the decision to the court of
appeals, arguing that the intentional tort of battery requires
proof of both an intent to make a contact and an intent to cause
harm thereby, and because Mr. Giese was mentally incompetent to
formulate the intent to cause harm, his attack could not
constitute a battery as a matter of law. The defendants, on the
other hand, maintained that a person need only intend to make a
harmful or offensive contact in order for that contact to
constitute a battery upon another. A person need not intend to

3 No. 20040405
cause harm or appreciate that his contact will cause harm so long
as he intends to make a contact, and that contact is harmful.
¶7 Both parties filed briefs with the court of appeals,
but oral argument was not heard on the matter. Instead, the
court issued a memorandum opinion affirming the district court’s
order of dismissal. Wagner v. Utah Dep’t of Human Servs., No.
20030106-CA, 2004 Utah App. LEXIS 282, at *8 (Utah Ct. App. Mar.
18, 2004) (mem.). The court of appeals reasoned that Mr. Giese’s
attack on Mrs. Wagner constituted a battery under Utah
jurisprudence interpreting the Governmental Immunity Act. Id. at
*5. The court distinguished the case at bar from the case the
Wagners cited in support of their argument, finding that Mr.
Giese’s attack, unlike the incident involved in the cited case,
“‘creat[ed] a substantial certainty [that] harm’” would arise out
of the contact. Id. at *6 (quoting Matheson v. Pearson, 619 P.2d
321, 323 (Utah 1980)).
¶8 Looking to outside case law as well, the court of
appeals found that the decisions reached in other jurisdictions
supported its conclusion that the resolution of the issue turned
not on whether the perpetrator of the attack intended to cause
harm, but rather upon “‘whether the injury was perpetrated
deliberately or accidentally.’” Id. at *7 (quoting Miele v.
United States, 800 F.2d 50, 52 (2d Cir. 1986)). The court of
appeals joined the courts of other jurisdictions, both state and
federal, in declining to incorporate a requirement that the
perpetrator have a certain mental state at the moment of the
attack in order for that attack to constitute a battery. The
Wagners appealed to this court, and we have jurisdiction pursuant
to Utah Code section 78-2-2(3)(a) (2002).
STANDARD OF REVIEW
¶9 When reviewing a court of appeals decision affirming a
grant of a rule 12(b)(6) motion to dismiss, “we review the
decisions of the court of appeals rather than that of the trial
court . . . for correctness.” Taghipour v. Jerez, 2002 UT 74,
¶ 8, 52 P.3d 1252. Because we are reviewing a rule 12(b)(6)
motion, we must “accept the material allegations in the complaint
as true and interpret those facts and all reasonable inferences
drawn therefrom in a light most favorable to the plaintiff as the
non-moving party.” Russell Packard Dev. v. Carson, 2005 UT 14,
¶ 3, 108 P.3d 741. We will affirm the court of appeals’
dismissal of the case only if, after granting such deference to
the Wagners’ factual presentation, we still find that they have
failed to state a claim upon which relief can be granted. Utah
R. Civ. P. 12(b)(6).

No. 20040405 4
ANALYSIS
I. GOVERNMENTAL IMMUNITY ACT
¶10 In interpreting any statute, rules of statutory
construction require the court to “first look[] to the statute’s
plain language, and give effect to the plain language unless the
language is ambiguous.” Blackner v. State, 2002 UT 44, ¶ 12, 48
P.3d 949. At the time of the incident in this case, the
Governmental Immunity Act read as follows:
Immunity from suit of all governmental
entities is waived for injury proximately
caused by a negligent act or omission of an
employee committed within the scope of
employment except if the injury arises out of
. . . :
(2) assault, battery, [or] false imprisonment
. . . .
Utah Code Ann. § 63-30-10(2) (Utah 1997) (repealed 2004).
¶11 This court has previously held in governmental immunity
cases that the State is immunized against a negligence action if
the action arises out of an assault or battery. Tiede v. State,
915 P.2d 500, 502-03 (Utah 1996) (holding the State immune from
suit for negligence in the shooting deaths of two and the assault
and battery upon three others under the assault and battery
exception to the immunity waiver); Higgins v. Salt Lake County,
855 P.2d 231, 241 (Utah 1993) (county immune from suit under the
battery exception where a mentally ill patient at a county
facility stabbed a child); Ledfors v. Emery County Sch. Dist.,
849 P.2d 1162, 1166 (Utah 1993) (school district immune from suit
under the battery exception for failing to properly supervise
high school students where those students severely beat another
student during a physical education class).
¶12 Utah courts make three inquiries to determine whether
the government is immune from suit under the Governmental
Immunity Act. First, courts must ascertain whether the activity
was a governmental function and thereby entitled to blanket
immunity under the Act. Second, if the activity constituted a
governmental function, courts must then look to see whether the
State has waived immunity under another section of the Act.
Finally, courts must determine whether there is an exception to
the waiver of immunity that retains immunity against suit for the

5 No. 20040405
cause of action in the particular case. Taylor v. Ogden City
Sch. Dist., 927 P.2d 159, 162 (Utah 1996).
¶13 Both sides concede that “the first two factors do not
shield the State” from suit. Wagner v. State, No. 20030106-CA,
2004 Utah App. LEXIS 282, *4. The State does argue, however,
that the third inquiry requires that the suit against the State
be dismissed under the Governmental Immunity Act because Mr.
Giese’s attack constituted a battery, an exception to the waiver
of immunity under former section 63-30-10(2).
¶14 The Wagners argue that Mr. Giese’s attack could not
legally constitute a battery because that intentional tort
requires the actor to intend harm or offense through his
deliberate contact, an intent Mr. Giese was mentally incompetent
to form. The State, on the other hand, argues that the only
intent required under the statute is simply the intent to make a
contact. The contact must be harmful or offensive by law, but
the actor need not intend harm so long as he intended contact.
¶15 The outcome of this case, then, turns upon which
interpretation of the definition of battery is correct.
Accordingly, we turn our attention now to the law of battery as
defined in the Restatement.
II. THE RESTATEMENT DEFINITION OF BATTERY
¶16 While there is some variation among the definitions of
the tort of battery, Prosser and Keeton on the Law of Torts § 8,
at 33-34 (W. Page Keeton et al. eds., 5th ed. 1984) (hereinafter
Prosser), Utah has adopted the Second Restatement of Torts to
define the elements of this intentional tort, including the
element of intent. Tiede v. State, 915 P.2d 500, 503 n.3. The
Restatement represents a “concept [of the law] consistent with
the most common usage in judicial opinions in tort cases.”
Prosser, supra, § 8, at 34. The Restatement reads:
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.
Restatement (Second) of Torts § 13 (1965).

No. 20040405 6
¶17 The only point of dispute in this case is whether the
language of the Restatement requires Mr. Giese to have intended
not only to make physical contact with Mrs. Wagner, which the
Wagners concede he did, but also to have intended the contact to
be harmful or offensive. In other words, is a battery committed
only when the actor intends for his contact to harm or offend, or
is it sufficient that the actor deliberately make physical
contact, which contact is harmful or offensive by law?
Determining the answer requires a careful dissection of the
elements of battery and the meaning of intent.
¶18 We conclude that the plain language of the Restatement,
the comments to the Restatement, Prosser and Keeton’s exhaustive
explanation of the meaning of intent as described in the
Restatement, and the majority of case law on the subject in all
jurisdictions including Utah, compels us to agree with the State
that only intent to make contact is necessary.
¶19 In order for a contact to constitute a battery at civil
law, two elements must be satisfied. First, the contact must
have been deliberate. Second, the contact must have been harmful
or offensive at law. We hold that the actor need not intend that
his contact be harmful or offensive in order to commit a battery
so long as he deliberately made the contact and so long as that
contact satisfies our legal test for what is harmful or
offensive.
¶20 We first address the intent element of battery to
explain our holding. Next, we discuss how the limited legal
nature of harmful or offensive contact restricts the types of
contacts for which actors may be potentially liable.
A. Legal Intent to Commit a Battery
¶21 Prosser described intent as “one of the most often
misunderstood legal concepts.” Prosser, supra, § 8, at 33.
Because intent is also “one of the most basic, organizing
concepts of legal thinking,” id., it is crucial that the term is
properly defined and understood. We begin our analysis with the
language in the Restatement itself.
¶22 The Restatement defines a battery as having occurred
where “[an actor] acts intending to cause a harmful or offensive
contact.” Restatement (Second) of Torts § 13. The comments to
the definition of battery refer the reader to the definition of
intent in section 8A. Id. § 13 cmt. c. Section 8A reads:

7 No. 20040405
The word “intent” is used throughout the
Restatement of this Subject to denote that
the actor desires to cause the consequences
of his act, or that he believes that the
consequences are substantially certain to
result from it.
Id. § 8A (emphasis added).
¶23 Although this language might not immediately seem to
further inform our analysis, the comments to this section do
illustrate the difference between an intentional act and an
unintentional one: the existence of intent as to the contact that
results from the act. Because much of the confusion surrounding
the intent element required in an intentional tort arises from
erroneously conflating the act with the consequence intended, we
must clarify these basic terms as they are used in our law before
we analyze the legal significance of intent as to an act versus
intent as to the consequences of that act.
¶24 Section 2 of the Restatement (Second) of Torts defines
the term “act” as “an external manifestation of the actor’s will
and does not include any of its results, even the most direct,
immediate, and intended.” Id. § 2. To illustrate this point,
the comments clarify that when an actor points a pistol at
another person and pulls the trigger, the act is the pulling of
the trigger. Id. at cmt. c. The consequence of that act is the
“impingement of the bullet upon the other’s person.” Id. It
would be improper to describe the act as “the shooting,” since
the shooting is actually the conflation of the act with the
consequence. For another example, the act that has taken place
when one intentionally strikes another with his fist “is only the
movement of the actor’s hand and not the contact with the others
body immediately established.” Id. Thus, presuming that the
movement was voluntary rather than spastic, whether an actor has
committed an intentional or negligent contact with another, and
thus a tort sounding in battery or negligence, depends not upon
whether he intended to move his hand, but upon whether he
intended to make contact thereby.
¶25 The example the Restatement sets forth to illustrate
this point is that of an actor firing a gun into the Mojave
Desert. Restatement (Second of Torts) § 8A cmt. a. In both
accidental and intentional shootings, the actor intended to pull
the trigger. Id. Battery liability, rather than liability
sounding in negligence, will attach only when the actor pulled
the trigger in order to shoot another person, or knowing that it
was substantially likely that pulling the trigger would lead to

No. 20040405 8
that result. Id. § 8A cmts. a & b. An actor who intentionally
fires a bullet, but who does not realize that the bullet would
make contact with another person, as when “the bullet hits a
person who is present in the desert without the actor’s
knowledge,” is not liable for an intentional tort. Id.
¶26 A hunter, for example, may intentionally fire his gun
in an attempt to shoot a bird, but may accidentally shoot a
person whom he had no reason to know was in the vicinity. He
intended his act, pulling the trigger, but not the contact
between his bullet and the body of another that resulted from
that act. Thus, he intended the act but not the consequence. It
is the consequential contact with the other person that the actor
must either intend or be substantially certain would result, not
the act–-pulling the trigger–-itself. He is therefore not liable
for an intentional tort because his intentional act resulted in
an unintended contact. On the other hand, the actor is liable
for an intentional tort if he pulled the trigger intending that
the bullet released thereby would strike someone, or knowing that
it was substantially likely to strike someone as a result of his
act. Id. at cmts. a & b.
¶27 Can an actor who acknowledges that he intentionally
pulled the trigger, and did so with the intent that the bullet
make contact with the person of another, defeat a battery charge
if he can show that he did so only as a joke, or did not intend
that the contact between the bullet and the body of the person
would cause harm or offense to that person? The Wagners argue
that such a showing would provide a full defense to a battery
charge because the actor lacked the necessary intent to harm.
¶28 We agree with the Wagners that not all intentional
contacts are actionable as batteries, and that the contact must
be harmful or offensive in order to be actionable. We do not
agree, however, that, under our civil law, the actor must
appreciate that his act is harmful or offensive in order for his
contact to constitute a battery. Before we resort to case law to
interpret the language and application of our battery law, we can
simply turn first to the plain language of the law itself for a
clear refutation of the Wagners’ theory.
¶29 The plain language of the comments makes clear that the
only intent required to commit a battery is the intent to make a
contact, not an intent to harm, injure, or offend through that
contact. Restatement (Second) of Torts § 13. So long as the
actor intended the contact, “it is immaterial that the actor is
not inspired by any personal hostility to the other, or a desire
to injure him.” Id. § 13 cmt. c. The actor will be liable for
battery even if he honestly but “erroneously believe[d] that

9 No. 20040405
. . . the other has, in fact, consented to [the contact].” Id.
In fact, even a healing contact motivated by a helpful intent, as
in an act of medical assistance, is actionable as a battery if
the actor did not in fact have permission to make the contact.
Id. The linchpin to liability for battery is not a guilty mind,
but rather an intent to make a contact the law forbids. The
actor need not appreciate that his contact is forbidden; he need
only intend the contact, and the contact must, in fact, be
forbidden.
¶30 The Restatement comments illustrate this principle
using two examples. In the first, an actor playing a good-
natured practical joke, under the mistaken belief that he has his
victim’s consent to make the contact, has committed a battery.
Id. In the second example, the healing contact of a physician,
acting with helpful intent but against the patient’s wishes,
constituted a battery. Id. The fact that the procedure
preserved the patient’s life does not change the result. Id.;
see, e.g., Meyers v. Epstein, 232 F. Supp. 2d 192, 198 (S.D.N.Y.
2002) (holding that “the only intent necessary to support a claim
of battery is simply the intent to make contact” and a physician
who did not have specific permission to do so has committed a
battery); Mohr v. Williams, 104 N.W. 12, 16 (Minn. 1905),
overruled on other grounds by Genzel v. Halvorson, 80 N.W.2d 854
(Minn. 1957) (holding that a physician committed a battery even
though he acted with helpful intent because he did not have the
patient’s consent to perform surgery on her right ear instead of
her left); Mink v. Univ. of Chicago, 460 F. Supp. 713, 718 (N.D.
Ill. 1978) (holding for plaintiffs in their negligence action
against physicians because “[t]he requisite element of intent is
. . . met, since the plaintiffs need show only an intent to bring
about the contact; an intent to do harm is not essential to the
action.”).
¶31 If a physician who has performed a life-saving act of
assistance upon an unconsenting patient with the hope of making
that patient whole is liable for battery under the express terms
of the Restatement, and a practical joker who makes a contact
which he thinks will be taken as a joke or to which he thinks his
victim has actually given consent is likewise liable, we cannot
then say that other actors must intend harm through their
deliberate contact in order to perfect a battery. It is beyond
argument that the Restatement itself requires neither a “desire
to injure” nor a realization that the contact is injurious or
offensive. Restatement (Second) of Torts § 13. Instead, the
actor need only intend the contact itself, and that contact must
fit the legal definition of harmful or offensive.

No. 20040405 10
¶32 Prosser echoed the Restatement when he clarified that
“[t]he intent with which tort liability is concerned is not
necessarily a hostile intent, or a desire to do harm. Rather, it
is an intent to bring about a result which will invade the
interests of another in a way that the law forbids.” Prosser,
supra, § 8, at 36. While it may be argued that this statement
means that the actor must intend that the contact be forbidden,
all ambiguity on the point is eviscerated by Prosser’s next
comment, in which he lists as one type of intentional tort the
act of “intentionally invading the rights of another under a
mistaken belief of committing no wrong.” Id. § 8, at 37.
¶33 Though Prosser recognizes that the plaintiff will often
recover to the greatest extent “where the [defendant’s] motive is
a malevolent desire to do harm,” he nonetheless ascribes the
malevolence to motive, not intent, and labels the less culpable
act of innocent invasion of another’s rights as an intentional
invasion. Id. These comments only underscore the point repeated
throughout both the Restatement and Prosser’s analysis that the
only intent required is the intent to make a contact to which the
recipient has not consented, and the actor need not appreciate
that the victim has not consented.
¶34 In Prosser’s analysis of battery itself, he states
that, in order for the contact to constitute a battery, “[t]he
act must cause, and must be intended to cause, an unpermitted
contact.” Id. § 9, at 41. In discussing the difference between
battery and mere negligence, he focused upon “the risk that
contact will result” from the act, not the risk that harm would
result from the contact. Id. Yet, if battery required an intent
to harm or offend, or to realize that the contact was harmful or
offensive or otherwise unpermitted, the proper focus of a
discussion distinguishing between negligent and intentional
conduct would be upon the risk that harm or offense would result
from the contact. Instead, the focus was upon whether the
contact itself, not the harm resulting therefrom, was intended or
resulted from mere inadvertence.
¶35 The Wagners’ argument that an actor lacks intent to
commit a battery where he deliberately makes physical contact
that is harmful or offensive so long as he does not realize his
contact is harmful or offensive is simply in direct conflict with
the commentaries in the Restatement itself and other commentaries
on the law. As Prosser states, “a defendant may be liable [for
battery] when intending only a joke, or even a compliment, as
where an unappreciated kiss is bestowed without consent, or a
misguided effort is made to render assistance.” Id. § 9, 41-42.

11 No. 20040405
¶36 The Wagners’ theory is also in conflict with the
majority of case law on the subject in both federal and state
courts, including Utah. See, e.g., 4 Restatement (Second) of
Torts § 895J; id. § 238B; Meyers v. Epstein, 232 F. Supp. 2d 192,
198 (S.N.D.Y. 2002); Cheney v. Studstrup, 32 F. Supp. 2d 1278,
1284 & n.6 (D. Utah 1998); Delahanty v. Hinckley, 799 F. Supp.
184, 187 (D.D.C. 1992); Williams v. Kearbey, 775 P.2d 670, 673-74
(Kan. Ct. App. 1989); Polmatier v. Russ, 537 A.2d 468, 469-70
(Conn. 1988). While there is a dearth of case law on this
precise subject from Utah state courts, our cases that do touch
upon the intent element of battery generally support the majority
rule to which we subscribe in this decision.
¶37 For instance, in Wright v. University of Utah, 876 P.2d
380, 387 (Utah Ct. App. 1994), cert. denied, 883 P.2d 1359 (Utah
1994), the court of appeals rejected Mrs. Wright’s argument that
the autistic university employee who struck her could not have
committed a battery because he lacked the mental capacity to form
the requisite intent. The court discussed her argument in the
context of explaining why it denied her request to amend her
complaint to include a pure negligence charge, justifying its
denial on the basis that “a party is not entitled to file an
amended complaint when the new claim is legally insufficient or
futile.” Wright, 876 P.2d at 387.
¶38 Describing Wright’s attempt to circumvent the
governmental immunity statute by recasting her claim as one
sounding in negligence rather than battery as “fruitless, albeit
creative,” the court looked to analogous federal cases to
dismantle her argument. Id. at 386-87. In accordance with the
federal courts’ analysis of the parallel provision in the federal
immunity statute, Federal Tort Claims Act, 28 U.S.C. § 2680(h)
(2000), the court of appeals concluded that “[n]othing in the Act
or in our case law indicates that the distinction Wright
champions was contemplated by the legislature to determine
whether immunity exists under section 63-30-10(2). The focus is
on the result, not the circumstances leading thereto.” Wright,
876 P.2d at 387.
¶39 We have also implicitly held that mental capacity is
not relevant to a liability determination in other cases
involving civil battery. In Higgins v. Salt Lake County, 855
P.2d 231, 233 (Utah 1993), the plaintiffs sued Salt Lake County
for negligently supervising a mental patient who attacked and
repeatedly stabbed their ten-year-old daughter. Though the
Higginses did not raise the argument that the attacker’s insanity
adjudication meant that her attack could not constitute a
battery, we found that the battery exception applied. Id. at

No. 20040405 12
240. The patient’s schizophrenia and marginal intelligence did
not persuade us that her actions could not amount to a battery
for lack of requisite intent. Id. at 241.
¶40 The Wagners correctly point out that our decision in
Matheson v. Pearson, 619 P.2d 321 (Utah 1980), does not conform
to the rule we have applied here. In Matheson, a maintenance man
sustained injuries when a student threw a piece of candy from an
open window at him, striking him in the back. Id. at 321-22.
The only way the injured plaintiff could recover against the
student for his injuries was if the act sounded in negligence
rather than battery, since the statute of limitations on battery
had already run by the time the case was filed. Id. at 322. We
held that battery requires an intent to harm, not just an intent
to make contact, and that the adolescent prank did not involve
the requisite intent. Id. at 322-23. Thus, the injured
maintenance man was able to proceed with his suit on a theory of
negligence.
¶41 The Matheson case, however, was decided before we
expressly adopted the Restatement definition of battery, and it
has been superceded by more recent case law on the subject of
intent. The reasoning promulgated in Matheson directly
contradicts the very example of battery the Restatement provided.
Restatement (Second) of Torts § 13 cmt. c. (“One who plays
dangerous practical jokes on others takes the risk that his
victims may not appreciate the humor of his conduct . . . .”).
Matheson is not a correct interpretation of the Restatement on
battery and it is hereby overruled. Instead, we ratify the
position taken by the majority of federal and state courts in
rejecting the argument that the actor must intend harm or offense
through his contact in order for that contact to constitute a
battery.
¶42 The discussion in Miele v. United States, 800 F.2d 50
(2d Cir. 1986), is informative on this point. There, the Second
Circuit held that the family of a child blinded and disfigured
when an insane AWOL soldier attacked him with sulphuric acid was
barred by the immunity doctrine from recovering against the
government, despite the family’s argument that the insane soldier
could not form the requisite intent to commit a battery. The
court held that the attacker’s mental capacity was irrelevant to
the question of whether the actor committed a battery for two
reasons.
¶43 First, the government’s fault in the attack “does not
change depending upon whether the aggressor was sane or insane at
the time.” Id. at 52. “While an insane employee may or may not

13 No. 20040405
be less culpable personally for such attacks, the question of
whether the injury was perpetrated deliberately or accidentally
does not depend upon the employee’s sanity.” Id. Second, under
the common law, “one who suffers from deficient mental capacity
is not immune from tort liability solely for that reason.” Id.
at 53, (citing W.L. Prosser, The Law of Torts § 135 (4th ed.
1971)). The linchpin of an action for battery, then, is simply
“the intent to make contact.” Id. Thus, the Mieles’ cause of
action against the government arose out of a battery, despite the
attacker’s mental incompetency.
¶44 Though the majority rule is not without its critics,
“the fact remains that ‘courts in this country almost invariably
say in the broadest terms that an insane person is liable for his
torts.’” Delahanty, 799 F. Supp. at 187 (quoting Williams, 775
P.2d at 673). Individuals such as Mr. Giese are included in this
category of liable actors because “‘mental deficiency does not
relieve [them] from liability for conduct which does not conform
to the standard of a reasonable man under like circumstances.’”
Polmatier, 537 A.2d at 470 (quoting Restatement (Second) of Torts
§ 283B). Indeed, the Restatement provides that, for the sane but
mentally deficient, “no allowance is made, and the actor is held
to the standard of conduct of a reasonable man who is not
mentally deficient, even though it is in fact beyond his capacity
to conform to it.” Restatement (Second) of Torts § 283B cmt. c.
¶45 Otherwise, the law would err on the side of protecting
actors who voluntarily make physical contacts with other people,
producing injury or offense, from liability for their deliberate
action. The result would be that the victims who were subjected
to a harmful or offensive physical contact are at the mercy of
those who deliberately come into contact with them, and must bear
the costs of the injuries inflicted thereby. The practical
consequences of such an interpretation would turn the law of our
civil liability on its head.
¶46 For example, a man who decides to flatter a woman he
spots in a crowd with an unpetitioned-for kiss, one of the
examples of battery Prosser provides, Prosser, supra, § 9, at
41-42, would find no objection under the Wagners’ proposed rule
so long as his intentional contact was initiated with no intent
to injure or offend. He would be held civilly liable for his
conduct only if he intended to harm or offend her through his
kiss. A woman in such circumstances would not enjoy the
presumption of the law in favor of preserving her bodily
integrity; instead, her right to be free from physical contact
with strangers would depend upon whether she could prove that the
stranger hoped to harm or offend her through his contact. So
long as he could show that he meant only flattery and the

No. 20040405 14
communication of positive feelings towards her in stroking her,
kissing her, or hugging her, she must be subjected to it and will
find no protection for her bodily integrity in our civil law.
¶47 The law would serve to insulate perpetrators of
deliberate contact from the consequences their contact inflicts
upon their victims. Bodily integrity would be secondary to
protecting a perpetrator’s right to deliberately touch another
person’s body without being accountable for the consequences that
contact occasioned. The “harmful or offensive” element would, in
essence, be viewed from the perspective of the actor, not the
objective eye of the law. Under this rule, so long as the actor
does not deem his deliberate contact to be harmful or offensive,
he may touch others however he wishes without liability under our
law of battery. It is clear that the purpose of our civil law on
battery was designed to create the opposite incentive. See,
e.g., Restatement (Second) of Torts § 283B cmts. b & c.
¶48 The objection can be raised that such a theory of
liability as we posit today expands liability beyond all
reasonable bounds. Perhaps a handshake or other similar gesture
will now expose a person to a lawsuit for battery if he happens
to unknowingly shake the hand of an unwilling individual. The
Restatement, however, and Prosser’s analysis thereof, yields this
objection wholly without basis.
¶49 We must bear in mind that not all physical contacts
deliberately initiated constitute batteries, only harmful or
offensive ones. Though it is true that the actor need not
appreciate that his contact is, nor need he intend it to be,
harmful or offensive in order for it to be so and for him to be
accountable for the injuries he inflicted by his intentional
contact, the contact must in fact be harmful or offensive in
order to constitute a battery.
¶50 We now explain that the legal test for harmful or
offensive contact preserves the Restatement’s purpose of
protecting the bodily integrity of individuals from invasion
while still recognizing the practical realities of our physical
world and the inevitable contacts therein. Because “harmful or
offensive contact” is determined objectively by the law, only
those deliberate contacts that meet the legal test for harmful or
offensive will constitute batteries.
B. Harmful or Offensive Contact at Law
¶51 A harmful or offensive contact is simply one to which
the recipient of the contact has not consented either directly or

15 No. 20040405
by implication. Prosser, supra, § 9, at 41-42. Under this
definition, harmful or offensive contact is not limited to that
which is medically injurious or perpetrated with the intent to
cause some form of psychological or physical injury. Instead, it
includes all physical contacts that the individual either
expressly communicates are unwanted, or those contacts to which
no reasonable person would consent.
¶52 What is not included in this definition are the
uncommunicated idiosyncratic preferences of individuals not to be
touched in ways considered normal and customary in our culture.
Instead, the law assumes consent to contacts “according to the
usages of decent society,” and unless an individual expressly
states that he does not want to shake hands, for example, someone
who shakes his hand against his silent wishes has not committed a
harmful or offensive contact. Id. § 9, at 42.
¶53 As Prosser notes in his analysis on the subject, “in a
crowded world, a certain amount of personal contact is
inevitable, and must be accepted. Absent expression to the
contrary, consent is assumed to all those ordinary contacts which
are customary and reasonably necessary to the common intercourse
of life.” Id. Among the contacts Prosser noted as part of this
common intercourse were: “a tap on the shoulder,” “a friendly
grasp of the arm,” and “a casual jostling to make a passage.”
Id. Thus, the tort of battery seeks to strike a balance between
preserving the bodily integrity of others and recognizing and
accommodating the realities of our physical world.
¶54 Because the law defines “harmful and offensive” with
reference to the mores of polite society, and protects against
invasions of bodily integrity perpetrated outside those bounds,
whether consent is assumed also depends upon who is making the
contact. For example, it seems clear that “the usages of a
decent society” and “polite manners” are in nowise offended when
a baby reaches out to perform the non-medically injurious act of
stroking the hair of a nearby stranger. Such encounters with
babies are “customary . . . in the course of life.” Id. § 9, at
42.
¶55 Thus, we can include this type of contact from babies
in the category of contacts for which we are assumed to have
consented. A grown man, on the other hand, perpetrating the same
act for equally complimentary reasons, would not enjoy the same
privilege, for his behavior would not be considered by reasonable
people to be a customary contact in decent society to which
members consent.

No. 20040405 16
¶56 The Wagners argue that Mr. Giese has the mental age of
a small infant, and should be held no more accountable for his
acts than a child of his mental age would. We disagree with the
Wagners’ legal conclusion.
¶57 As already explained, the law of torts, and battery in
particular, was designed to protect people from unacceptable
invasions of bodily integrity. Taking into account the realities
of our physical world, and the physical contacts that are not
only inevitable, but are part of our cultural customs, there are
limits to the physical contacts from which the law will protect
us. The law assumes consent as to all regular and culturally
acceptable contacts. Certain contacts from very young children
fall into this category primarily because most contacts from very
young children are not medically injurious given their relative
physical weakness and their standing in our society.
¶58 Not so with mentally handicapped adults. Even if the
adult had the mental capacity of a small child, the difference in
size and strength would make any attempt at an analogy between
societal consent to a baby’s contact and societal consent to
attacks at the hand of such an adult wholly unreasonable.
Clearly, society has not simply consented to violent contacts
from the mentally handicapped. Under the Restatement, as long as
a person, mentally handicapped or not, intended to touch the
person of another, and the touch was a harmful or offensive one
at law, he has committed a battery, and the price of the injuries
he inflicted must be paid out of his, or his caretaker’s,
pockets.
¶59 Further, aside from this practical difference, there is
a legal one as well. While the Restatement does provide that
“[i]f an actor is a child, his mental deficiency is taken into
account,” Restatement (Second) of Torts § 283B cmt. a, it grants
no such exception for adults with the mental age of a child,
instead clearly refusing to provide any allowance for the
mentally handicapped to be free from liability for deliberate
contacts that produce harm or offense. Id. § 283B cmt. c.
¶60 It does not matter that Mr. Giese may not have
understood that Mrs. Wagner had not consented to the contact
because it is not an element of the tort that the actor
appreciate that the contact is unwanted. His mental incompetence
may insulate him from criminal liability because the mental
handicap may negate the mens rea requirement, but the same level
of intent is not required for civil liability to attach.

17 No. 20040405
¶61 The Wagners argue that Mr. Giese could not have
committed any tort at all, either sounding in intentional torts
or in negligence. However, if we were to adopt the rule urged by
the Wagners, we would be contorting the law in order to provide
recovery in this isolated instance. Yet, in doing so, we would
be contracting the recoveries of all other plaintiffs victimized
by insane or mentally handicapped individuals who are suing a
non-State entity, and, in the process, limiting the protection of
the bodily integrity of everyone.
¶62 The policy behind the Restatement definition of battery
is to allow plaintiffs to recover from individuals who have
caused them legal harm or injury, and to lay at the feet of the
perpetrators the expense of their own conduct. Lawmakers have
specifically declined to exempt mentally handicapped or insane
individuals from the list of possible perpetrators of this tort
for the express reason that they would prefer that the caretakers
of such individuals feel heightened responsibility to ensure that
their charges do not attack or otherwise injure members of the
public.
¶63 We recognize that, in this instance, the retained
immunity doctrine bars the caretakers of such a handicapped
person from taking responsibility for the conduct of their
charge. It is unfortunate, and perhaps it is improvident of the
State to retain immunity in this area. But it is not our role as
a judiciary to override the legislature in this matter; it is for
us only to interpret and apply the law as it is. We will not
limit the recoveries of all other plaintiffs similarly injured by
defining the tort of battery in such a way as to make it far more
burdensome for plaintiffs to satisfy its elements and recover,
nor will we distort the plain language of the Restatement so as
to elevate an actor’s “right” to deliberately touch others at
will over an individual’s right to the preservation of her bodily
integrity.
CONCLUSION
¶64 Applying the rule we have laid out today to the facts
of this case, it is clear that Mr. Giese’s attack constituted a
battery upon Mrs. Wagner. There is no allegation that his action
was the result of an involuntary muscular movement or spasm.
Further, the Wagners concede that Mr. Giese affirmatively
attacked her; they do not argue that he made muscular movements
that inadvertently or accidentally brought him into contact with
her.

No. 20040405 18
¶65 The fact that the Wagners allege that Mr. Giese could
not have intended to harm her, or understood that his attack
would inflict injury or offense, is not relevant to the analysis
of whether a battery occurred. So long as he intended to make
that contact, and so long as that contact was one to which Mrs.
Wagner had not given her consent, either expressly or by
implication, he committed a battery. Because battery is a tort
for which the State has retained immunity, we affirm the court of
appeals’ decision to dismiss the case for failure to state a
claim.
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¶66 Justice Durrant, Justice Parrish, and Justice Nehring
concur in Associate Chief Justice Wilkins’ opinion.
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DURHAM, Chief Justice, concurring:
¶67 I concur in the lead opinion’s excellent treatment of
the battery issue and write separately merely to note that the
petitioners’ arguments regarding the continuing validity of
Ledfors v. Emery County School District, 849 P.2d 1162 (Utah
1993), were stricken by this court because they were not
addressed by the court of appeals and thus were not within the
scope of our review on certiorari. Our opinion here therefore
does not address that issue. Cf. Doe Parents No. 1 v. State,
58 P.3d 545 (Haw. 2002).
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