Guide to Assault and Battery

By Elspeth Crawford

The intentional torts of assault and battery are often grouped together as if they are one single cause of action. While it’s true that the two frequently appear beside one another, they are two entirely different torts with their own discrete set of requirements.

Assault

An assault occurs when a defendant gives a plaintiff the impression that they are going to harm him, but for an assault to be actionable the defendant need not actually harm the plaintiff. Assault has two requirements. First, the person committing the assault must act with the intention to cause a harmful or offensive contact with the person of the plaintiff or a third party. Second, the person committing the assault must act in such a way that the plaintiff has the imminent apprehension of contact.

• The important thing to remember about assault, and the thing that most distinguishes it from battery, is that for there to be a valid assault no actual contact need occur. If a defendant points a gun at a plaintiff and the plaintiff actually believes that the defendant might pull the trigger, an assault has occurred. It does not matter whether the defendant actually pulls the trigger or not.
  
  
• Words or threats alone are not enough to constitute an assault. If a defendant threatens to punch a plaintiff in the head, for example, the threat does not rise to the level of an assault. However, words or threats combined with some kind of overt action can be enough. If that same defendant raises his fist in the air while making his verbal threat, his action could constitute an assault.
  
  
• In order for there to be an assault, the defendant must intend to cause a harmful or offensive contact with the plaintiff. If the defendant only gives the impression of causing such a contact but does not have the intent to do so, there is no assault. For example, if a defendant trips over something and gives a nearby plaintiff the impression that he is going to strike him, there is no assault because the defendant did not intend any contact. It was an accident. The plaintiff might be able to recover in another way, perhaps through negligence, but would not have a claim for assault.
  
  
• Likewise, there is no assault unless the plaintiff actually perceives an imminent contact. If the plaintiff does not know that the defendant is about to make contact with him, there can be no assault. For example, if a defendant sneaks up behind a plaintiff and raises a fist with the intent to strike, there is no assault because the plaintiff did not know of any imminent contact. If the defendant actually does strike the plaintiff, the plaintiff can recover in battery, which we’ll look at next.

Battery

A battery occurs when a defendant intends to cause a harmful or offensive contact with a plaintiff or a third person and actually does cause such a contact. Basically, if you are touched in way that is considered harmful or offensive, the person who touched you has committed a battery.

• In order for a battery to occur, a defendant need not make direct contact with the person of the plaintiff. If a defendant shoots a plaintiff with a bullet, for example, a battery has still occurred even though the defendant never touched the plaintiff himself. Batteries can be even more indirect. For example, if a defendant pulls out a plaintiff’s chair right before the plaintiff sits down, resulting in the plaintiff falling and being hurt, the defendant has committed a battery.
  
  

Although the defendant must intend to cause a harmful or offensive contact in order for a battery to be actionable, they do not get to decide what kinds of contact are harmful and offensive and which are not. If a defendant hits a plaintiff as part of a practical joke that the defendant considered harmless, a battery has nonetheless occurred if the court considers the contact to have been harmful or offensive.

Consent

Consent is a defense to battery. Plaintiffs who consent to batteries before they happened have little chance of prevailing in court. In addition to freely given consent, the law assumes that people consent to ordinary and customary batteries that occur commonly throughout everyday life. For example, a plaintiff who sues a defendant for battery after the defendant bumps into him in a crowded subway car would likely not win the case because the court will hold that the plaintiff gave implied consent for the battery to occur.

While assault and battery are separate causes of action, they very often occur together. If plaintiff perceives that a defendant has raised his fist to strike him, and then the defendant actually does strike him, the defendant has committed both an assault and a battery. If you have been the victim of an assault, a battery, or both, you can bring one or more causes of action to recover.

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