Personal Injury Claims for Assault and Battery

What is Meant by "Assault and Battery"

In the context of criminal law, "assault and battery" is normally a single criminal offense. For personal injury law, the two components are normally separated:

  • Assault - An act that creates fear of an imminent battery; and

  • Battery - A wrongful touching.

Assault and battery are classified as intentional torts, meaning that the person against whom a claim is made must actually intend the harm. This article discusses the laws of assault and battery as commonly applied in personal injury cases, although the law may vary to some degree depending on the jurisdiction in which the case is filed.

What is Assault

An assault involves:

  1. An intentional, unlawful threat or "offer" to cause bodily injury to another by force;
  2. Under circumstances that create in the other person a well-founded fear of imminent peril;
  3. Where there exists the apparent present ability to carry out the act if not prevented.

To put it more simply, to constitute an assault, the 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.

An assault can be completed even if there is no actual contact with the plaintiff, and even if the defendant had no actual ability to carryout the apparent threat. For example, a defendant who points a realistic toy gun at the plaintiff may be liable for assault, even though the defendant was fifty feet away from the plaintiff and the defendant had no actual ability to inflict harm from that distance. If the plaintiff believes that the toy gun is real, the act of pointing the gun creates a well-founded fear of being shot, and that intentional creation of fear constitutes an assault.

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 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.

An offensive touching can constitute a battery even if it does not cause injury, and could not reasonably be expected to cause injury. For example:

  • A defendant who emphatically pokes the plaintiff in the chest with his index finger to emphasize a point may be culpable for battery -- although any damages award that results from a lawsuit is likely to be minimal.

  • A defendant who spits on a plaintiff has committed a battery, even though there is little chance that the spitting will cause any injury other than to the plaintiff's dignity.

Provocation by Words

Words alone, no matter how insulting or provocative, do not justify an assault or battery against the person who utters the words.

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.


Where 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 of 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. Although it may be possible for 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 -- rule violations that are part of standard play are unlikely to support a legal action.

Consent also arises in the context of mutual combat. When a plaintiff voluntarily engages in a fight with defendant for the sake of fighting and not as a means of self-defense, the plaintiff may not recover for an assault or battery unless the defendant exceeds the reasonable limits of the plaintiff's consent.

If two people voluntarily enter a brawl, it is unlikely that either will be able to sue the other. However, if one person falls and the other takes advantage of the situation by kicking him and causing a serious injury, that act may well be considered to be an excessive use of force that would support a cause of action for battery. Similarly, the introduction of a weapon to a fistfight is likely to be deemed an escalation that exceeds the limits of consent.

Consent also exists in the context of authorized medical or surgical procedures.


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 have legal authority to apply reasonable restraint to prevent a patient from causing harm to himself, to others, or to property.

  • Guards within a prison or jail may use reasonable force to maintain order and discipline within a population of inmates.


A person who is assaulted 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 ordinarily be proportionate to the perceived 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 hit the person with a baseball bat.

Traditionally, most jurisdictions required that a plaintiff withdraw from a threat, if possible, before engaging in forcible resistance. However, if the plaintiff is in his own home and the defendant is not a member of the plaintiff's household, a plaintiff will typically not be required to further withdraw from the threat once the plaintiff has retreated into his own home. 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

The defense to an assault charge based upon taking action in the defense of others is similar to an ordinary claim of self-defense. Defense of others is normally 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, as long as the defendant's mistake is reasonable. 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 amount 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.


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 apply reasonable physical discipline upon their children.

  • In some jurisdictions, school teachers or administrators may permitted to use physical discipline against students.

Merchant's Privilege

Most jurisdictions grant merchants the right to apply reasonable force to detain shoplifters, or other persons who the merchant reasonably believes are attempting to steal the merchant's property. The details of merchant's privilege may vary significantly between states, and typically require that the merchant use no more force than is reasonable under the circumstances, and that any detention be for no more time than is reasonable to confirm whether shoplifting occurred and to summon the police to arrest the suspected shoplifter.

Damages in an Assault and Battery Civil Case

As an assault or battery may occur without any actual injury to the plaintiff, or may involve acts that put a plaintiff in extreme fear of harm or that cause serious injury, the amount of damages that may potentially be recovered in a personal injury case can vary enormously based upon the facts.

Where little or no harm is suffered by a plaintiff, it will not ordinarily make sense to file a lawsuit. However, where there is a serious injury to the plaintiff's dignity or a significant bodily injury, the damages that could potentially be recovered from the defendant are more 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 Aug 17, 2016.