ASSAULT- An Intentional Tort

A "tort" is some sort of wrongful act that causes damage to another person. This definition
covers an extensive variety of activities, and the legitimate field of torts is part up into a wide
range of subcategories. One of the ways torts are part up is by the mental condition of the
individual that does the wrongdoing.

When the person that acts wrongly actually intends to perform the action, it becomes what is
known as an "intentional tort."

Injuries can occur for a variety of reasons. They can happen because another person was
negligent or reckless, or because the person wanted to intentionally inflict an injury.
Intentional torts occur when a person intentionally acts in a certain way that leads to another
person's injury. Some common examples of intentional torts are assault, battery, trespass, and
false imprisonment.

Assault is a tort and occurs when one person intentionally places anther in a state of fear.
There are three types of assault: simple assault, assault and battery and aggravated
assault. Each type of assault is intended to instil fear and may even involve physical pain
against another person.1

Two men walk outside the bar... this may sound like the beginning of a funny joke, but if this
leads to one of the men pulling a pushover punch on the other, it is no laughing matter. It is
assault. The interesting thing about assault is that it does not have to lead to physical harm. It
can be instilling eminent fear of physical harm against another person.

Assault is a tort, and means, in common law, that someone did wrong to another person.
Under tort law, it is a civil action but is also considered a criminal act.

Under tort law, there is a plaintiff, who is the injured party, and a tortfeasor, who essentially
is the defendant in the action.

A plaintiff in a tort of assault case can sue for pecuniary damages, like money or
compensation for injury and any loss suffered as a result of the injury. Time lost from work
because of medical treatment and court appearances may also qualify as damages.
1
“Assault and Battery Overview"- criminal.findlaw.com.
Let's go back to the gentlemen at the bar. If the two men exchanged a few off-color words, an
assault did not take place. Merely exchanging choice words without one person feeling
fearful of physical violence is not enough to prove intent to harm. However, if those choice
words included direct threats, like 'I'm going to kick you,' or 'You are going to eat a knuckle
sandwich,' this may qualify as assault.

Certain elements must be present to prove an assault occurred:

 The plaintiff perceived immediate physical contact with the defendant

 Plaintiff had suspicion that he was in eminent danger

 The actions of the defendant, or tortfeasor, were intentional, not accidental

In other words, the plaintiff must prove that tortious conduct occurred and that the conduct
was exacted against him and resulted in some type of damage.

Now keeping in mind, an important element of assault is intent. It must be demonstrated that
the tortfeasor acted in a purposeful way to cause harm to another person. We will rely on a
classic example to demonstrate intent. If a person was to pull a knife on another person,
regardless of whether the knife was made of clay or steel, this action is considered an assault,
even in the absence of threatening words.

Conversely, if a person yells, 'I'm going to stab you,' and no knife is present, this may not be
considered assault because without a knife, there can be no real intent to cause harm at that
moment. Sometimes a simple assault can lead to a more heinous action, like physical
violence.

Words, without a demonstration, can't constitute an assault. For instance, no assault has
happened where a man waves his arms at another and yells, "will shoot you!" where no
firearm is obvious or clear. Be that as it may, if the debilitating words are joined by some
activity that demonstrates the culprit can complete a risk, an assault has happened.

It is an assault where a man debilitates to shoot another while indicating a firearm, even
where the casualty later discovers that the weapon was not stacked or even genuine. Besides,
indicating a weapon without a going with verbal risk is still an assault, accepting the casualty
saw the firearm.
Assault requires expectation, implying that there has been a think, unjustified obstruction
with the individual right or freedom of another in a way that causes hurt. In the tort of assault,
aim is set up if a sensible individual is considerably sure that specific outcomes will come
about; plan is set up regardless of whether he or she really expects those results to come
about. Indicating a firearm at somebody's head is significantly sure outcome in fear for the
casualty.

The casualty must have a sensible misgiving of upcoming harm or hostile contact. This
component is built up if the demonstration would deliver worry in the psyche of a sensible
individual. Apprehension is not the same as dread. Worry implies mindfulness that a damage
or hostile contact is inevitable. For instance, it might take less to make anxiety in the brain of
a youngster than a grown-up.

Additionally, if a casualty is uninformed of the danger of mischief, no assault has happened.

To take this one step further, what if this square off between two bar patrons ends in
something even more violent, like a stabbing or a shooting?

Aggravated assault is an assault which criminal laws punish more severely due to its
seriousness. Factors which raise an assault to an aggravated assault typically include the use
of a deadly weapon, the status of the victim, the intent of the perpetrator, and the degree of
injury caused. Assaults that happen in the victim's home can also qualify as an aggravated
assault.

States classify certain assaults as aggravated assault under their criminal codes. They may

Basic assault does not require physical harm, but rather that the perpetrator behaves in a way
intended to put someone in reasonable fear for their safety. Someone who does this by
threatening the person with a deadly weapon commits aggravated assault because the fear
involved is fear of more grievous injury.

Weapons classified as deadly weapons typically include things which could cause death or
serious injury. Some weapons fit this bill including guns. Whether or not other objects
constitute deadly weapons depends on the manner in which they are used in the assault. For
example, a pocket knife is generally not considered a lethal weapon, but if held to a victim’s
neck, it could be deadly.

What happens when a threat turns to a violent act? We know that assault is the lesser crime
because no physical action took place. However, when assault is coupled with physical harm,
like a punch or a kick, the offense is considered not one, but two torts, i.e. assault and
battery.

In both criminal and civil law, "battery" is the intentional touching of, or application of force
to, the body of another person in a harmful or offensive manner (and without consent).2

A battery is an intentional tort, as opposed to an act resulting from negligence. The elements
to establish the tort of battery are the same as for criminal battery, excepting that criminal
intent need not be present. The elements of civil battery are:

Intent (not criminal intent to cause injury, necessarily, but intent to commit the act)

Contact (non-consensual contact with the individual or his/her effects, such as clothing)

Harm/Damages (the battery caused actual injuries, not limited to just physical harm)

Battery can be as direct as striking someone in the face with your fists or as indirect as setting
a trap that harms an individual hours or days after it is set. Battery also can be unwanted
sexual contact or other non-consensual touching that causes harm of some kind.

Acts that constitute battery could include: playing a joke on a person, where the "punchline"
involves offensive contact, performing surgery on the wrong area of a person's body,
throwing an object that strikes a person, and poisoning a person's drink.

Examples of acts that do not constitute a battery include: tapping a person on the shoulder to
ask a question, and injuries that occur in the normal course of a sport (since, by agreeing to
play the sport, the participant has consented to contact that is common in the game) awarded
in battery cases vary widely, depending on the seriousness of the injuries.

The above definition of assault developed at common law. What this means is that courts
developed a working definition over the course of centuries, long before it a legislature
passed a statute defining civil assault. Modern assault statutes closely reflect this ancient
common-law definition. An assault is both a crime and a tort. Therefore, an assailant may
face both criminal and civil liability. A criminal assault conviction may result in a fine,
2
http://www.expertlaw.com/library/personal_injury/assault_battery.html
imprisonment, or both. In a civil assault case, the victim may be entitled to monetary
damages from the assailant.

In criminal law, expectation implies acting with a criminal or wrongful reason. Criminal
assault statutes frequently discuss acting "intentionally," "purposely," "heedlessly," or
"carelessly." Acting carelessly intends to horribly digress from the benchmarks of ordinary
direct. Some criminal assault statutes perceive just "intentionally," "purposely," and
"heedlessly" as the level of aim required to set up that an offense happened.

The difference between battery as a crime and battery as a civil tort is merely in the type of
intent required. A criminal battery requires the presence of mens rea, or a criminal intent to
do wrong, i.e., to cause a harmful or offensive contact. Accordingly, a defendant found guilty
of the crime of battery is often sued by the defendant in a civil action for the same
offense/incident.

Simple criminal battery is most often prosecuted as a misdemeanour. Repeat offenses or the
specific nature of the offense may warrant more severe treatment. For example, in some
states, a second or third offense against the same individual is a felony. In cases of domestic
violence, many states do not permit battery charges to be dropped against the defendant, even
at the request of the victim, because of the potential for repeat or escalated harm.

As mentioned above, "assault" and "battery" can give rise to cases in both civil and criminal
courts.

In civil lawsuits, "assault" and "battery" are considered intentional torts, meaning the
defendant (the person being sued) meant to take the action that led to the harm suffered by
the plaintiff (the person filing the personal injury lawsuit). The plaintiff in a civil case must
only prove "by a preponderance of evidence" that the defendant is liable for damages caused
by assault/battery. And if the plaintiff is successful, he or she may recover "damages"
(monetary compensation) for physical and emotional harm, lost income, and other losses
arising from the incident. (Learn more about Personal Injury Damages.)

In a criminal "assault" or "battery" case, the state government brings formal charges against
the defendant, and tries to prove "beyond a reasonable doubt" (which is a tougher burden of
proof than the one that must be met in civil cases) that he or she committed the
assault/battery. The person who was harmed might be called as a witness, but the action is
brought by "the people of" the state where the alleged crime occurred. If the defendant is
found guilty, he or she will be subject to a number of different punishments that are usually
spelled out in the state’s penal code (i.e. incarceration for a certain amount of time,
imposition of fines, probation, community service, counseling).

Some common assault and battery case laws includes;

Reed v. City of Lavonia - where the courts decided that police officers were not entitled to
qualified immunity since they used excessive force with their nightsticks during an arrest.3

And, in - courts sided with the family of a non-verbal autistic man who was restrained by
officers with handcuffs, hobbles and pepper spray in an excessive manner.4

As long as the victim is placed in fear of imminent contact, no actual physical contact or
injury need occur. For example, if a defendant intended to scare the plaintiff by swinging a
baseball bat near him, and the plaintiff was put in fear of physical injury, the plaintiff would
have a case for civil assault.

According to the Restatement (Second) of Torts, the assailant doesn’t have to intend to have
physical contact with his victim in order for civil battery to occur. He must merely intend to
cause the imminent apprehension, or fear, of physical harm in his victim. For example, if a
defendant merely intended to scare the plaintiff by swinging a baseball bat near him, but the
plaintiff was accidentally hit by the bat, the plaintiff would have a case for civil battery.

In a successful assault or battery suit, the plaintiff is awarded damages to compensate her/his
for the injuries and expenses that resulted from the tort. That usually includes any medical
expenses, lost wages, or pain and suffering that the victim experienced. If the assault or
battery was especially traumatic, the plaintiff may receive damages to cover the cost of
therapy as well.

3
Reed v. City of Lavonia, (M.D. Ga. 2005) 390 F. Supp. 2d 1347, 1369-70

4
Champion v.  Outlook Nash Inc.,( 6th Cir. 2004)03-5068
According to section 351 of IPC “ whoever makes any gesture, or any preparation intending
or knowing it to be likely that such gesture, or preparation will cause any person present to
apprehend that he who makes that gesture or preparation is about to use criminal force to that
person is said “to commit an assault”.5

Mere words do not amount to an assault. But the words which a person uses may give to his
gestures or preparations such a meaning as may make those gestures or preparations amount
to an assault.

The essential ingredients of an assault are:

1) That the accused should make a gesture or preparation to use criminal force;

2) Such gesture or preparation should be made in the presence of the person in respect of
whom it is made;

3) There should be intention or knowledge on the part of the accused that such gesture or
preparation would cause apprehension in the mind of the victim that criminal force would be
used against him;

4) Such gesture or preparation has actually caused apprehension in the mind of the victim, of
use of criminal force against him.

Assault is generally understood to mean the use of criminal force against a person, causing
some bodily injury or pain. But, legally, ‘assault’ denotes the preparatory acts which cause
apprehension of use of criminal force against the person. Assault falls short of actual use of
criminal force. An assault is then nothing more than a threat of violence exhibiting an
intention to use criminal force accompanied with present ability to effect the purpose.

According to Section 351 of the Code, the mere gesture or preparation with the intention of
knowledge that it is likely to cause apprehension in the mind of the victim, amounts to an
offence of assault. The explanation to Section 351 provides that mere words do not amount to
assault, unless the words are used in aid of the gesture or preparation which amounts to
assault.

The apprehension of the use of criminal force must be from the person making the gesture or
preparation, but if it arises from some other person it would not be assault on the part of that

5
Indian Penal Code Chapter XVI
person, but from somebody else, it does not amount to assault on the part of that person. The
following have been held to be instances of assault:

i) Lifting one’s lota or lathi

ii) Throwing brick into another’s house

iii) Fetching a sword and advancing with it towards the victim

iv) Pointing of a gun, whether loaded or unloaded, at a person at a short distance

v) Advancing with a threatening attitude to strike blows.

Though mere preparation to commit a crime is not punishable, yet preparation with the
intention specified in this section amounts to an assault.

Another essential requirement of assault is that the person threatened should be present and
near enough to apprehend danger. At the same time there must have been present ability in
the assailant to give effect to his words or gestures.

For example, if a person standing in the compartment of a running train, makes threatening
gesture at a person standing on the station platform, the gesture will not amount to assault, for
the person has no present ability to effectuate his purpose.6

The question whether a particular act amounts to an assault or not depends on whether the act
has caused reasonable apprehension in the mind of the person that criminal force was
imminent. The words or the action should not be threat of assault at some future point in
time. The apprehension of use of criminal force against the person should be in the present
and immediate.

The gist of the offence of assault is the intention or knowledge that the gesture or
preparations made by the accused would cause such effect upon the mind of another that he
would apprehend that criminal force was about to be used against him. Illustration (b) to
Section 351 exemplifies that although mere preparation to commit a crime is not punishable
yet preparation with intention specified in Section 351 amounts to assault.7

Sec. 352 prescribes punishment for assault or criminal force otherwise than on grave
provocation. It lays down that whoever assaults or uses criminal force to any person
otherwise than on grave and sudden provocation given by that person shall be punished with
6
http://indianlawcases.com/Act-Indian.Penal.Code,1860-1804
7
"Indian Penal Code"- Vakilno1.com
imprisonment of either description for a term which may extend to three months, or with fine
which may extend to Rs. 500/- or with both. The offence under this Section is non-
cognizable, bailable, compoundable, and trial-able by any Magistrate.

References:-

1) “Assault and Battery Overview"- criminal.findlaw.com

2) http://www.expertlaw.com/library/personal_injury/assault_battery.html

3) Reed v. City of Lavonia, (M.D. Ga. 2005) 390 F. Supp. 2d 1347, 1369-70

4) Champion v. Outlook Nash Inc.,( 6th Cir. 2004)03-5068

5) Indian Penal Code Chapter XVI

6)http://indianlawcases.com/Act-Indian.Penal.Code,1860-1804

7)"Indian Penal Code"- Vakilno1.com