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Abstract

In certain instances, the courts appear to apply the law of civil battery in a confused and unfair manner to defendants with cognitive disabilities. In cases where there is the "appearance" of a civil battery-where the defendant causes harmful or offensive contact to the plaintiff-courts appear to assume the existence of the requisite intent and, accordingly, the commission of the tort. As justification, the courts frequently offer that "the insane are liable for their torts."

This Article agrees that a cognitive disability, or "insanity " to employ the terminology often used by the courts, is not an affirmative defense to intentional torts in general or to battery in particular. The Article argues, however, that a relevant and diagnosable cognitive disability may in certain instances have bearing on the plaintiffs ability to meet the burden of proving the necessary, prima facie element of intent. In such instances, fairness and the proper application of the law of battery demand that the plaintiff meet this burden of proof before the case can move forward.

North Carolina cases are among those that appear to confuse the prima facie element of intent with the affirmative defense of insanity. However, these North Carolina cases are now decades old and ripe for a revisit. This timing, coupled with the willingness of North Carolina courts to think innovatively about complex legal issues, makes the North Carolina judiciary an excellent candidate to clarify the law of civil battery as applied to persons with relevant and diagnosable cognitive disabilities. This Article is a plea to North Carolina courts to bring clarity to the law of civil battery and fairness to the assessment of liability in defendants with cognitive disabilities.

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