Article by:
Johnny C. Chriscoe1

39 Campbell L. Rev. 241 (2017)


North Carolina legislators and judges frequently refuse to bow to national majority positions and trends in tort law.  For example, North Carolina is one of the few states to continue to recognize contributory negligence as a complete bar to recovery in negligence actions,2 to continue to recognize the heart balm torts of alienation of affections and criminal conversation,3 and to continue, against widespread popularity to the contrary, to reject strict liability as a basis for recovery in an action arising out of products liability.4

North Carolina legislators and judges repeatedly demonstrate a willingness to be innovative in addressing complex legal issues.  Examples include the creation of the North Carolina Business Court,5designed to address and resolve complex business issues, and the Veterans Court,6 a specialized criminal court established to work through the complicated issues experienced by military veterans.

North Carolina is urged to once again stray from the national majority positions in tort law and be innovative in addressing complex legal issues.  This time, the issue to be addressed is the intentional tort of battery and the assessment of liability for adults with pertinent and diagnosable cognitive disabilities.

While much of the discussion herein would apply to intentional torts in general, this Article focuses on the intentional tort of battery.  Battery appears most prevalently in the cases cited in this Article.  Further, battery presents an additional issue of intent with regard to how it is applied to the other operative elements of the tort,7 which makes battery particularly interesting with respect to its application to defendants with diagnosable cognitive disabilities.

For purposes of the intentional tort of battery, the majority rules and principles of law, under certain circumstances, appear to place adults with cognitive disabilities in a uniquely unfair position.  The law of intent, while fair on its face, often applies unfairly because of flawed legal analysis by the courts or, in certain instances, a lack of analysis.

North Carolina currently appears to follow the flawed application of the law, but its law is grounded in a handful of cases that are now decades to a century old.8  The courts decided these cases at a time when the treatment of persons with cognitive disabilities, in general, was problematic given the basic misunderstanding and lack of knowledge about such disabilities.  Many advancements in the understanding of cognitive disabilities have occurred since these decisions were rendered.  Thus, North Carolina is now in an excellent position to revisit these rules and to bring honesty and fairness to the application of the law.

This Article is a plea to North Carolina to hold the plaintiff to his burden of proving the prima facie element of intent, for purposes of civil battery, even when the defendant has a pertinent and diagnosable cognitive disability.  Such proof requires reliable evidence from qualified witnesses on the defendant’s ability to form the requisite intent.  Therefore, specialized courts may be necessary to fully assess such issues, or these cases may of necessity be combined with cases in other courts to the extent they exist, where mental health issues are common.

Part I of this Article discusses courts’ tendencies to fail to analyze or discuss the prima facie element of intent when assessing the civil battery liability of a defendant with a cognitive disability.  It further discusses their inclination to focus instead on the inapplicability of the defense of insanity, which they justify with the statement that “the insane are liable for their torts.”  Part II explores North Carolina’s early and current position on these issues, which tends to follow the analysis found in other jurisdictions.  Part III discusses how North Carolina might lead the way in bringing fairness to the assessment of civil battery liability for defendants with cognitive disabilities.


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