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Фото: Global Look Press
In many paradigmatic cases of battery, however, the defendant does not in any ordinary sense of the term use or instrumentalize the plaintiff. To shoot another person in order to eliminate him as a romantic rival is classic battery — but it cannot be understood as “using” him except by defining a sense of the term that is so capacious that it is essentially stipulative and conclusory.186 Even waiving this objection and granting that intentionally making contact with an object to eliminate it can count as “using” it, the proposal fails to track well-settled law. It is well-established that if a defendant intentionally makes contact with an object that she mistakenly regards as an animal or inanimate object, and the object is in fact the plaintiff’s body, the plaintiff’s action will sound in negligence, not battery.187 Nor does the Kantian view make room for the fact that a defendant can batter a plaintiff entirely as a side effect of pursuing her own goals, by unintentionally imposing on the plaintiff a “substantial certainty” of harm.188 To be sure, the law equates such “substantial certainty” to intent,189 for the purpose of imposing liability in battery and the other intentional torts. But this equivalence is plainly a fiction.