Key Takeaways

  • Assault in tort law focuses on the intentional creation of fear of imminent harm, not actual physical contact.
  • The three core elements are: intent, apprehension of harmful or offensive contact, and causation.
  • Assault differs from battery because physical contact is not required—only the reasonable belief that harm is about to occur.
  • Defenses include consent, self-defense, defense of others, and lack of intent.
  • Courts assess whether a “reasonable person” would perceive imminent harm, not whether the plaintiff was unusually sensitive.
  • Assault is categorized as an intentional tort and may give rise to civil remedies such as damages for emotional distress.
  • Criminal assault charges differ from civil assault claims but are based on similar underlying principles.

Assault

The Restatement (2nd) of Torts states:

(1) An actor is subject to liability to another for assault 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) the other is thereby put in such imminent apprehension

Civil vs. Criminal Assault

In tort law, assault is classified as a civil wrong (intentional tort), distinct from criminal assault. Civil assault focuses on compensating the victim for the mental distress caused by the apprehension of harm, while criminal assault is prosecuted by the state and may result in fines or imprisonment. A single act can give rise to both criminal and civil liability. For example, a person who raises a fist to strike another may face criminal charges from the state and a civil lawsuit for damages from the victim.

Elements of Assault

Therefore, Assault has three elements:

  1. intent,
  2. apprehension of a harmful contact, and
  3. causation.

Assault is distinguished from battery because there is no requirement of actual contact - just a mental disturbance in the victim. Of course, there must be actual causation - if the act fails to cause such an apprehension, the Plaintiff cannot argue that it could have or would have in a different person.

Mere words do not constitute assault - there must be an accompanying act. Further, there must be the apparent ability to carry out the act: if a reasonable person would not think the actor capable of fulfilling the threatened contact then there is no assault. The courts have been hesitant to apply assault in the context of an "eggshell plaintiff" - one who is uncommonly susceptible to harm (the tort most commonly found in these situations is Intentional Infliction of Emotional Distress).

Real-World Examples of Assault

Courts often look at whether a reasonable person would fear imminent harm under the circumstances. Examples include:

  • Pointing a weapon at someone, even if unloaded, can constitute assault if the victim reasonably fears being shot.
  • Advancing on someone with a raised fist or object in a threatening manner can be assault.
  • Conversely, conditional threats (“If you weren’t my friend, I’d hit you”) without imminent action typically do not qualify.

Remedies in Civil Assault Cases

Victims of assault may seek civil remedies, which often include:

  • Compensatory damages for medical bills, lost wages, or emotional distress.
  • Punitive damages in cases of especially egregious conduct, meant to punish the defendant and deter future misconduct.
  • Injunctions or restraining orders to prevent future threats or harassment.

Assault vs. Battery

Assault and battery are closely related but distinct. Assault is the creation of a reasonable fear of imminent harm, while battery is the actual physical contact that follows. A raised fist can constitute assault, while the subsequent punch is battery. Understanding this distinction is crucial, as a plaintiff may bring separate claims for assault and battery arising from the same incident.

Common Defenses to Assault Claims

Defendants accused of assault may raise several defenses:

  • Consent: If the plaintiff agreed to the act (e.g., in contact sports), assault is not established.
  • Self-Defense: Reasonable force used to protect oneself from imminent harm is a recognized defense.
  • Defense of Others: A person may act to protect another if the threat of harm is imminent.
  • Lack of Intent: If the act was accidental or lacked the intent to cause apprehension, it does not meet the assault standard.

Frequently Asked Questions

  1. How is assault defined in tort law?
    Assault in tort law is the intentional act of creating a reasonable apprehension of imminent harmful or offensive contact, even if no physical contact occurs.
  2. What are the main differences between assault and battery?
    Assault is about the fear of imminent harm, while battery requires actual physical contact. Both can arise from the same incident.
  3. Can words alone amount to assault?
    Generally, words alone do not constitute assault. There must be an accompanying act that creates reasonable apprehension of imminent harm.
  4. What damages can a victim of assault recover?
    Victims may recover compensatory damages for emotional distress, lost wages, and medical expenses, as well as punitive damages in severe cases.
  5. Are there defenses to civil assault claims?
    Yes. Common defenses include consent, self-defense, defense of others, and lack of intent.

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