Assault and Battery
By Aaron Larson
March, 2005
Contents
While references to "assault and battery" make it seem like the two acts are inseparable, within the context of personal injury law they are usually considered separate acts. An "assault" is an act which creates fear of an imminent battery. A "battery" is an unlawful, offensive touching.
Both assault and battery are intentional torts, meaning that the defendant actually intends cause harm to the plaintiff, be that the fear inspired by the assault or the offensive contact resulting from the battery. For a battery, there is no requirement that the victim suffer a physical injury. A battery may be indirect, caused by contact through a thrown stone, or spitting, and need not cause any harm beyond the contact itself in order to be actionable.
Assault
In most jurisdictions, the elements of an assault are:
- An intentional, unlawful threat or "offer" to cause bodily injury to another by force;
- Under circumstances which create in the other person a well-founded fear of imminent peril;
- Where there exists the apparent present ability to carry out the act if not prevented.
Accordingly, an assault can be completed even though there is no actual contact with the plaintiff, and even though the defendant had no actual ability to carry out the apparent threat. For example, where a defendant points a realistic toy gun at the plaintiff, the plaintiff may be able to prevail in an action for assault. The fact that the defendant was fifty feet away with no actual ability to shoot or inflict harm upon the plaintiff is not a defense, if the plaintiff reasonably believed that the defendant was prepared to shoot.
Battery
A battery is the willful or intentional touching of a person against that person’s will by another person, or by an object or substance put in motion by that other person. Such an offensive touching can constitute a battery even though it does not cause physical injury, and could not reasonably be expected to cause injury. A defendant who emphatically pokes the plaintiff in the chest with his index finger to emphasize a point may be culpable for battery (although the damages award that results may well be small or nominal). Similarly, a defendant who spits on a plaintiff has committed a battery, even where the only injury is to the plaintiff's dignity.
Provocation
Words alone, no matter how insulting or provocative, do not justify the perpetration of an assault or battery against the person who speaks or utters the words.
Privilege
Sometimes in defending against a charge of assault or battery, the defendant will claim to have possessed a "privilege" to assault or batter the defendant. The following are examples of "privilege", which if accepted may defeat a claim for assault or battery:
Consent
Where a plaintiff has consented to the defendant's acts, the plaintiff may not subsequently bring a lawsuit on the basis of those acts claiming assault or battery. The most typical context for a consensual battery occurs in sports. The tackle in football, or even the intentional foul in basketball, is an anticipated part of the game. While at times the defendant's conduct will be so far outside the realm of what is reasonable to nonetheless support a cause of action - for example, chopping an opposing player off at the knees in a football game, an action which is known to have a very high probability of causing serious and even crippling injury - rule violations which are part of standard play are unlikely to support a personal injury action.
Consent also exists in the context of medical or surgical procedures authorized by the plaintiff.
Defense of Property
Many jurisdictions permit the use of a reasonable amount of threat or force by a person who is seeking to protect his own property from theft or damage. In most jurisdictions, however, there is no privilege to use force that may cause death or serious injury to a trespasser unless the trespass itself threatens death or serious injury. There are some jurisdictions with extraordinarily broad defense of property laws, which permit the use of significant and even deadly force to prevent the theft of property. (Be sure that you know your local laws before applying force in such a situation.)
Discipline
Some people are legally authorized to apply physical restraint or battery in order to discipline others. Most jurisdictions permit parents to apply reasonable physical discipline upon their children. Some jurisdictions permit school teachers to apply a certain level of physical restraint or discipline against students. Staff members at a mental health facility may have legal authority to apply reasonable restraint to prevent a patient from causing harm to himself, to others, or to facility.
Merchant's Privilege
Most jurisdictions grant merchants the right to exercise reasonable force to detain shoplifters, or other persons who the merchant reasonably believes are attempting to steal the merchant's property. The merchant may be required to promtly summon a law enforcement agency to take custody of the suspect in order to maintain this privilege as a viable defense.
Police Conduct
A police officer is privileged to apply the threat of force, and if necessary to apply actual force, in order to effect a lawful arrest. A defendant who suffers injury as the result of reasonable force applied by the police in order to to effect a lawful arrest will not be able to sustain a lawsuit against the arresting officers or police agency for assault or battery.
Self-Defense & Defense of Others
A person who is assaulted may use such reasonable force as may be necessary, or which at the time reasonably appears to be necessary, to protect himself from bodily harm. An act of self-defense must ordinarily be proportionate to the threat. That is, if you believe a person is going to spit on you, depending upon the context it may be reasonable to push the person away, but it would not be reasonable to shoot the person or to hit the person with a baseball bat.
When possible, a plaintiff may be expected to withdraw from the threat before engaging in forcible resistance. However, where the plaintiff is in his own home and the defendant is not a member of the plaintiff's household, a plaintiff will not ordinarily be required to engage in further withdrawal from the threat once the plaintiff has retreated to his own home.
Defense of others is similar to self-defense, and usually occurs where one family member acts to protect another. Some jurisdictions will allow a defendant to assert "defense of others" even where the defendant is mistaken as to the existence of a threat, as long as the mistake is reasonable. Other jurisdictions do not permit this a "defense of others" claim unless there was an actual threat or battery against the other person.
Voluntary or Mutual Combat
Where the plaintiff and defendant voluntarily engages a fight with each other, the plaintiff may not recover for an assault or battery unless the defendant beats the plaintiff excessively or uses unreasonable force. Where two people voluntarily enter a brawl, under most circumstances neither will be able to sue the other. However, in the event that one falls and the other exploits the situation by kicking him and causing injury, that act may constitute excessive or unreasonable force which would support a cause of action.