Personal Injury Claims for Assault and Battery

Although most personal injury cases arise from claims of accidental injury or negligence, it is also possible to seek damages for intentionally caused injuries.

The victim of an assault or a battery may seek compensation for injuries caused by the person who committed those wrongful acts. Compensation for an act of assault or battery may be based upon the plaintiff's physical injuries and their treatment, psychological injury, and for offenses to dignity such as might result from having somebody spit in your face.


What is "Assault and Battery"

For purposes of personal injury law, assault and battery are classified as intentional torts. An intentional tort occurs when the person against whom an injury claim intended to cause harm to the victim. In a typical lawsuit for assault or battery, the victim sues the person who committed the wrongful act and seeks compensation for injuries and other damages or losses caused by that act.

Although the law governing a personal injury case may vary based upon the laws of the state where the injury occurred, the general definitions of assault and battery remain consistent:

  • Assault: An intentional act that creates in another person the reasonable apprehension or fear of an imminent battery; and
  • Battery: Intentional physical contact with or touching of another person.

Within the context of criminal law, assault and battery were historically treated as distinct crimes. Many modern criminal statutes now combine acts of assault and battery into a single criminal offense. However, for personal injury law the two acts normally remain separate.

What is Assault

An assault involves:

  1. The intentional, unlawful threat to cause bodily injury to another by force;
  2. Under circumstances that create in the other person the reasonable fear of imminent harm;
  3. Where the person committing the assault has the apparent present ability to carry out the harmful act.

More simply, to constitute an assault, an action taken by the defendant must put the plaintiff in reasonable fear of being battered, or demonstrate the defendant's intention to wrongfully touch the plaintiff. For example, if a defendant charges up to a plaintiff with fists raised, declaring, "I'm going to mess you up", if the plaintiff believes the threat the defendant will have committed an assault. No actual contact is required.

The plaintiff must be aware of the assault in order to bring a successful personal injury claim. If a defendant attempts to strike the plaintiff with a baseball bat, but swings and misses, that act could constitute an assault. But if the defendant is standing behind the plaintiff and the plaintiff never perceives the threat, then the defendant will not have committed the tort of assault because of the plaintiff's lack of awareness of the threat. The defendant's attempt to strike the plaintiff could still be prosecuted as a criminal act.

An assault may be completed even if the defendant had no actual ability to carryout the apparent threat. For example, if a defendant points a toy gun at the plaintiff from a distance at which the plaintiff cannot identify the gun as a toy, and the plaintiff reasonably believes that the defendant intends to shoot, the defendant commits an assault even though the defendant is unable to actually shoot the plaintiff.

As an assault requires the fear of imminent harm, a claim of assault cannot be supported by a threat of future harm.

  • The claim, "I'm going to beat you up right now," coupled with the apparent ability to do so, would constitute an assault.
  • The statement, "I'm going to beat you up next week", would not be an assault as defined by tort law, although if the threat were credible it might support a criminal charge or provide the basis for obtaining an order of protection against the person who made the threat.

What is a 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. The touching may be with part of the defendant's body, such as a fist or foot, or by an object, such as a baseball bat or thrown rock, or by a substance such as spittle or a thrown beverage.

A battery may occur through direct contact, or may be indirect:

  • Direct Battery: A direct battery involves contact such as a slap, punch, or kick, or the striking of the plaintiff with an object that is held by the defendant.
  • Indirect Battery: An indirect battery results from an action that does not involve direct contact between the plaintiff and defendant, such as where the plaintiff is hit by an object thrown by the defendant, or the defendant spits on the plaintiff.

In indirect battery may be immediate or remote.

  • Immediate Battery: The contact occurs at the time of the defendant's wrongful act, such as when a plaintiff is struck by a rock thrown by the defendant.
  • Remote Battery: The contact occurs at a period of time after the defendant's wrongful act is committed, such as where the defendant puts an offensive object or substance in food that the plaintiff later eats, or where the defendant sets a trap that the plaintiff later triggers.

For purposes of personal injury law, an offensive touching can constitute a battery even if it does not cause a physical injury, and could not reasonably be expected to cause injury. For example:

  • A defendant who angrily pokes the plaintiff in the chest with his finger may be liable for battery, although any damages award that results from a lawsuit is likely to be minimal.
  • A defendant who spits on a plaintiff commits a battery, even though there is little chance that the spitting will cause any injury other than to the plaintiff's dignity.

It is possible for a battery to occur, even when there was no assault. For example, the act of intentionally pushing somebody can support a battery claim. But if the defendant pushes the plaintiff from behind, such that the plaintiff was unaware of the defendant's actions before being pushed, that lack of awareness would prevent the plaintiff from proving the apprehension of imminent harm and thus from recovering for assault.

Defenses to Assault and Battery

Common defenses to assault and battery claims include consent and mutual combat, privilege, self-defense and the defense of others, merchant's privilege, lawful discipline and, in some jurisdictions, defense of property.

Consent

When a defendant has the plaintiff's consent to commit an act that would normally constitute assault or battery, the plaintiff may not later bring a lawsuit.

The most typical context for consent occurs in sports. The intentional foul in a game of basketball, or the tackle in a football game, are an anticipated part of the game. Similarly, if you engage in a paintball tournament with others, you consent to the possibility that somebody is going to fire at you and perhaps hit you with a paintball.

Within the context of sports, rule violations that are part of standard play are unlikely to support a legal action. However, it may be possible for sports-related conduct to be so far outside the realm of what is reasonable to nonetheless give rise to a tort. For example, chopping an opposing player off at the knees in a football game, an action that is known to have a very high probability of causing serious and even crippling injury, may result in a personal injury claim despite the expectation of physical contact.

Consent also arises in the context of mutual combat. If a plaintiff voluntarily engages in a fist fight with defendant, not as an act of self-defense, the plaintiff may recover for an assault or battery only if the defendant exceeds the reasonable limits of the plaintiff's consent. When two people voluntarily engage in a brawl, it is thus unlikely that either will be able to successfully sue the other. However,

  • If one person involved in the fight falls and the other person kicks him while he's down, that act of kicking may constitute an excessive and unauthorized use of force that would support a cause of action for battery.
  • The introduction of a weapon to a fistfight will normally be treated as an escalation of the fight that exceeds the limits of consent.

Consent also exists for authorized medical or surgical procedures. Much of the contact that occurs within the context of medical treatment would be offensive and inappropriate in another setting, but the patient's consent for the contact and treatment renders it lawful.

Privilege

The term privilege refers to the legal right to take an action. In order to be liable for an assault or battery, the defendant must not have the legal right to assault or batter the plaintiff.

For example,

  • 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. As long as the police do not exceed the level of force that is reasonably necessary to effect a lawful arrest, a defendant who suffers injury as the result of the arrest will not be able to succeed in a claim of assault or battery.
  • The staff of a mental health facility may possess legal authority to apply reasonable restraint to a patient, in order to prevent the patient from inflicting harm upon himself, upon others, or to property.
  • Guards within a prison or jail may use reasonable force to maintain order and discipline within a population of inmates.

Self-Defense

A person who is assaulted may act in self-defense. That is, the person may use such reasonable force as may be necessary, or that at the time reasonably appears to be necessary, to prevent the infliction of bodily harm.

An act of self-defense must normally be proportionate to the perceived threat. For example, if you believe that another person is going to spit on you it may be reasonable to push that person away from you, but it would not be reasonable to strike the person with a baseball bat.

Traditionally, most jurisdictions have required that, before engaging in forcible resistance, a plaintiff withdraw from a threat whenever possible. However, the traditional duty to withdraw ends once the plaintiff has retreated into his own home. That is, if the plaintiff is in his own home and the defendant is not a member of the plaintiff's household, a plaintiff is not ordinarily required to further withdraw from the threat.

Some states have passed "stand your ground" laws that reduce or eliminate the requirement to withdraw from a threat before engaging in acts of forcible self-defense.

Defense of Others

A claim that an assault or battery was committed in the "defense of others" is similar to a claim of self-defense. The defense asserts that the assault or battery was a reasonable response to the harm or threat of harm to another person.

Defense of others is most often raised within the context of one family member protecting another from harm.

Some jurisdictions permit a defendant to assert defense of others even if the defendant is mistaken as to the existence of a threat, provided that defendant's mistake was reasonable under the circumstances. Other jurisdictions do not permit this defense to be raised unless there was an actual threat or battery against the other person.

Defense of Property

Many jurisdictions allow the use of some degree of threat or force by people who are attempting to protect their own property from theft or damage.

In most jurisdictions, there is no privilege to use force that may cause death or serious injury against trespassers unless the trespass itself threatens death or serious injury. A small number of jurisdictions have extraordinarily broad laws, permitting the use of significant and possibly even deadly force to prevent the theft of property.

It is important to fully understand the laws of your jurisdiction before using force against another person in the defense of property.

Discipline

Some people are legally authorized to apply physical restraint or commit an act that would otherwise constitute a battery in order to discipline others. For example,

  • Parents are legally authorized to impose reasonable physical discipline upon their children.
  • In some jurisdictions, school teachers or administrators may permitted to impose physical discipline upon students.

Merchant's Privilege

Under state law, merchants have the right to use reasonable force to detain shoplifters, or other persons whom the merchant reasonably believes are attempting to steal property from the merchant's store or business. The scope of merchant's privilege varies by state. Broadly speaking:

  • States typically forbid merchants from using more force than is reasonable under the circumstances to detain a suspected thief until the police arrive.
  • State laws also typically limit any detention of a suspected shoplifter to a period no longer than is reasonable to confirm whether or not shoplifting occurred and to summon the police to arrest the suspected shoplifter.

Provocation by Words

No matter how insulting or provocative the words may be, words alone do not justify an assault or battery against the person who speaks them, and provocation by words is not a defense to either assault or battery.

Damages in an Assault and Battery Civil Case

The amount of damages that may potentially be recovered in a personal injury case can vary enormously based upon the facts and the injury suffered by the plaintiff. An assault or battery may occur without any physical injury to the plaintiff. Other acts of assault or battery may result in serious physical injury or even death.  Damages may include medical costs, pain and suffering damages, and compensation for mental anguish or loss of dignity.

Recover of damages is based upon the injury suffered by the plaintiff, not the extent to which the defendant intended to cause harm. For example:

  • If a plaintiff falls over as a result of being pushed and suffers a serious head injury upon striking the ground, the defendant may be held liable for damages from the head injury in addition to the wrongful act of pushing the plaintiff.
  • If a plaintiff is frail or has a medical condition that causes the plaintiff's injury to be more severe than would be experienced by a healthier person, under what is known as the eggshell skull rule, the defendant is liable for the full extent of the plaintiff's injury.

Even without contact, an act of assault may cause a plaintiff to fall over, suffer a panic attack, or to have a heart attack.

Sometimes an offense to dignity will result in a significant damages award, even without an associated physical injury. For example, a jury may be inclined to award considerable compensation to a plaintiff who was publicly humiliated and spat upon by a defendant.

If a victim suffers little or no harm as a result of an assault or battery, it does not ordinarily make sense to file a lawsuit. However, where an assault or battery results in a serious injury to the plaintiff's dignity or a significant bodily injury, the damages that could potentially be recovered from the defendant are likely to justify a lawsuit.

Copyright © 2003 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was last reviewed or amended on May 7, 2018.