In tort it occurs when the defendant intends to inflict a battery, assault, false imprisonment, trespass to land, or trespass to chattels on plaintiff. If he causes any of these five torts to that person or to another person he will be held liable on an intentional tort theory even if the harm is unexpected. There need be no intent to inflict any of the harm other than the intended harm and there need be no intent to harm any specific person other than an intent to commit one of the torts against the original intended victim.
An actor is subject to liability to another for battery if he or she 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 a harmful or offensive contact with the person of the other directly or indirectly results. Restatement (Second) of Torts §§ 13, 18 (1965); W. Keeton, D. Dobbs, R. Keeton, D. Owen, Prosser & Keeton on the Law of Torts § 9 (5th ed. 1985); see Whitley v. Andersen, 37 Colo. App. 486, 551 P.2d 1083 (1976), aff'd, 194 Colo. 87, 570 P.2d 525 (1977); CJI-Civ. 3d 20:5 (1989).
With respect to the level of intent necessary for a battery and the transferability of such intent, Restatement (Second) of Torts § 16 (1965) provides as follows:(1) If an act is done with the intention of inflicting upon another an offensive but not a harmful bodily contact, or of putting another in apprehension of either a harmful or offensive bodily contact, and such act causes a bodily contact to the other, the actor is liable to the other for a battery although the act was not done with the intention of bringing about the resulting bodily harm.(2) If an act is done with the intention of affecting a third person in the manner stated in Subsection (1), but causes a harmful bodily contact to another, the actor is liable to such other as fully as though he intended so to affect him. (emphasis added).
See also Restatement (Second) of Torts § 20 (1965); Alteiri v. Colasso, 168 Conn. 329, 362 A.2d 798 (1975)(when one intends an assault, then, if bodily injury results to someone other than the person whom the actor intended to put in apprehension of harm, it is a battery actionable by the injured person); Brown v. Martinez, 68 N.M. 271, 361 P.2d 152 (1961).
Under the doctrine of transferred intent, if a defendant unlawfully aims at one person and hits another he is guilty of assault and battery on the party he hit, the injury being the direct, natural and probable consequence of the wrongful act. (6 C.J.S. Assault and Battery, par. 10, subd. 2.)'' (See also Prosser on Torts, 2d ed., p. 33.)
Following is this comment on Subsection (2) of the Restatement (Second) of Torts: 'b. The intention which is necessary to make the actor liable under the rule stated in this Section is not necessarily an intention to cause a harmful or offensive contact or an apprehension thereof to the plaintiff himself or otherwise to cause him bodily harm. It is enough that the actor intends to produce such an effect upon some other person and that his act so intended is the legal cause of a harmful contact to the other. It is not necessary that the actor know or have reason even to suspect that the other is in the vicinity of the third person whom the actor intends to affect and, therefore, that he should recognize that his act though directed against the third person involves a risk of causing bodily harm to the other so that the act would be negligent toward him.' and this is followed by Illustration 3. A and B are trespassers upon C's land. C sees A but does not see B nor does he know that B is in the neighborhood. C throws a stone at A which misses him. Immediately after C has done so, B raises his head above a wall behind which he has been hiding. The stone misses A but strikes B, putting out his eye. C is liable to B.' See, Randall v. Ridgley, La.App., 185 So. 632.
The Restatement Torts 2d § 13 which provides, inter alia, that an actor is subject to liability to another for battery if intending to cause a third person to have an imminent apprehension of a harmful bodily contact, the actor causes the other to suffer a harmful contact. The full text of § 13 provides: 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. Section 13 has common law roots that precede the American Revolution, Scott v. Shepherd, 2 Wm.Bl. 892, 96 Eng.Rep. 525 (1773). It is supported by a substantial body of American cases conveniently noted in Prosser, Torts, 4th ed., 1971, pp. 32-34, of which Singer v. Marx, 144 Cal.App.2d 637, 301 P.2d 440, 443 (1956) is most relevant. The whole rule and especially that aspect of the rule which permits recovery by a person who was not the target of the defendant embody a strong social policy including obedience to the criminal law by imposing an absolute civil liability to anyone who is physically injured as a result of an intentional harmful contact or a threat thereof directed either at him or a third person. See Prosser, supra.
Under the doctrine of transferred intent one who intends a battery is liable for that battery when he unexpectedly hits a stranger instead of the intended victim. W. Prosser, The Law of Torts, 33 (4th ed. 1971). If one intentionally commits an assault or battery at another and by mistake strikes a third person, he is guilty of an assault and battery of the third person if 'defendant's intention, in such a case, is to strike an unlawful blow, to injure some person by his act, and it is not essential that the injury be to the one intended.' Morrow v. Flores, 225 S.W.2d 621, 624, Tex.Civ.App. (1949), rehearing denied 1950.
Virginia courts have adopted the doctrine of transferred intent reasoning that '. . . . every person is liable for the direct, natural and probable consequence of his acts, and that every one doing an unlawful act is responsible for all of the consequential results of that act.' Bannister v. Mitchell, 127 Va. 578, 104 S.E. 800, 801 (1920). There need be no actual intent to injure the particular person who is injured. Id.