Bar Exam — MBE (Multistate Bar Exam)TortsEasy
A homeowner observed a trespasser attempting to break into his garage. Fearing for his property, the homeowner fired a warning shot into the air. The trespasser, startled, fled the scene and was not injured. If the trespasser sues the homeowner for battery, which of the following is the homeowner's most likely successful defense?
- ALack of intent to cause harmful contact, as it was a warning shot.
- BDefense of property, as the homeowner was protecting his garage.
- CSelf-defense, as he feared for his safety.
- DAbsence of physical contact, as the trespasser was not hit.
Show answer & explanationAnswer & explanation
Correct answer: D. Absence of physical contact, as the trespasser was not hit.
Battery requires an intentional harmful or offensive contact with the plaintiff's person. Since the trespasser was not hit and suffered no physical contact, a key element of battery is missing, making this a strong defense.
Why the other options are wrong
- A. Intent for battery can be satisfied by intent to cause apprehension of contact (assault) that results in contact. However, if no contact occurs, then battery is not met, regardless of intent to scare.
- B. While defense of property allows for reasonable force, it generally does not permit deadly force or force creating a risk of serious injury to protect property alone. More importantly, this defense wouldn't apply if a core element of battery (contact) is missing.
- C. Self-defense requires a reasonable belief of imminent bodily harm to oneself, which is not clearly stated here, as the homeowner states fearing for his 'property'. Also, no contact for battery.
Battery (Absence of Contact)
A key element of battery is intentional harmful or offensive physical contact with the plaintiff's person. Without such contact, the tort of battery is not established.
- Contact must be actual physical contact or contact with something intimately connected to the person.
- Contact must be harmful or offensive.
- Defendant must intend to cause the contact or apprehension of contact.
- Absence of contact is a complete defense to battery.
Memory trick: Battery: Intentional, Harmful, Contact.