by Raphael Metzger, Esq.

Toxic tort practitioners typically allege negligence and strict liability claims on behalf of their clients in toxic exposure cases, but it is uncommon for toxic tort lawyers to allege the plaintiff exposed to a toxic chemical is the victim of a battery.  Can a toxic exposure be a battery?

BAJI 7.50 defines battery as “any intentional, unconsented, and harmful [or offensive] contact by one person with another.”

The instruction lists three essential elements of a battery claim:

1.         Defendant intentionally did an act which resulted in a harmful [or offensive] contact with the plaintiff’s person;
2.         Plaintiff did not consent to the contact;
3.         The harmful [or offensive] contact caused injury, damage, loss or harm to the plaintiff.  BAJI 7.50 (1992 Revision)

The intent necessary to constitute a battery is not an intent to cause harm, but an intent to do the act which causes the harm.  Lopez v. Surchia (1952) 112 Cal.App.2d 314, 318; Singer v. Marx (1956) 144 Cal.App.2d  637, 641.

A company that manufactures or distributes a chemical that is volatile or has other properties which would be expected to result in human contact would therefore appear to possess the requisite general intent to commit a civil battery.  By manufacturing or distributing a volatile chemical that causes injury, the company is doing an act which results in a harmful contact with the plaintiff’s person. 

It is a rare person who consents to a harmful or offensive contact.  The second element of a battery claim is therefore generally present in toxic exposure cases.

If the plaintiff has suffered some injury as a result of the chemical exposure, the third element of the claim is made out.  A chemical injury may be anything from irritation to a chemical burn, or a chromosomal injury to cancer or other disease.

Many cases have defined battery as an unlawful and intentional harmful contact with the person of another.  The word “unlawful” has generated much confusion in battery cases.  This confusion was clarified a few years ago in Barouh v. Haberman (1994) 26 Cal.App.4th 40, in which the Court of Appeal held that “a contact is ‘unlawful’ if it is unconsented to,” id. at 45, and disapproved the use of the term in battery jury instructions.

In recent years a number of courts have recognized battery as a viable cause of action in toxic exposure cases. 
For example, the court in Gulden v. Crown Zellerbach Corp. (9th Cir. 1989) 890 F.2d 195, held that exposing workers to PCBs at 500 times EPA standards could constitute a battery.

In Mink v. Univ. of Chicago (N.D. Ill. 1978) 460 F.Supp. 713, women given DES as part of a medical experiment stated a battery claim not only against medical practitioners, but also against the manufacturer of the drug.

In Blankenship v. Cincinnati Milacron Chemicals, Inc. (1982) 433 N.E.2d 572, workers intentionally exposed to toxic chemicals stated a claim for battery.

See also, 24 Sw.U.L.Rev. 1237, Secondhand Smoke Damages:  Extending a Cause of Action for Battery Against a Tobacco Manufacturer.

Why allege a battery cause of action in a toxic injury case?  One reason is that the claim does not require proof that the defendant was negligent.  Since liability is imposed for doing an act which causes harm, battery is a form of strict liability.  However, unlike a true strict liability claim, the plaintiff need not prove that the toxic chemical was defective in its manufacture or design, or that it was accompanied by inadequate warnings or instructions.

Lastly, punitive damages are typically recoverable for battery, although it appears that the plaintiff would nevertheless have to prove by clear and convincing evidence that the defendant’s conduct was fraudulent, malicious or oppressive, as well as despicable.  Civil Code § 3294.

This article was published in the Los Angeles Daily Journal on September 25, 1997 under the title “Contact Foul: Toxic Emissions May Subject Defendant to Battery Claim.”