Injury Newsletter

Assault and Battery

Two common types of personal injury torts are assault and battery. Battery is often confused with assault, and the two terms are often perceived as one claim. In actuality, they are two separate legal claims. An assault is an act that creates a reasonable apprehension of an imminent battery, while a battery is the intentional and unpermitted physical contact with another. Often, claims for both assault and battery are filed that stem from the same incident. However, even though the torts often occur together, it is important to understand that they are separate and distinct legal claims.

Assault

In an assault claim, the plaintiff must perceive a threat that is regarded as imminent. It is not necessary that the plaintiff actually be frightened or intimidated. The focus of the court is whether the plaintiff’s apprehension was reasonable under the circumstances. In many cases it is held that mere words are not enough to constitute an assault — there must be an accompanying overt act. Likewise, in order to recover on an assault claim, the plaintiff must establish that the defendant was capable, at the time the threat was made, of carrying it out. Therefore, in order to prove a case for assault, the plaintiff must establish that the threat of harm was imminent, that the defendant was actually capable of carrying out the threat (or the plaintiff reasonably believed he or she was actually capable) and that a reasonable person, in the plaintiff's circumstances, would have been apprehensive.

Battery

Battery can occur where an individual — or an item in contact with that individual — is touched in an offensive manner. As opposed to assault, the plaintiff need not have been aware of the contact at the time it actually occurred. In general, two different types of contact may constitute a battery: contact that caused physical harm (for example a cut, scrape, bruise, burn, fracture or physical pain) or nonconsensual contact that did not cause physical harm. Since battery is an intentional tort, the plaintiff must prove that the defendant intended his or her conduct. The plaintiff need not prove that the defendant intended to harm the plaintiff, but only that the conduct itself was intentional and not an accident. An exception to this rule is that even in situations where consent was obtained, if the actions of the defendant move beyond the boundaries of the consent given, a battery may occur.

The discussion above deals with civil tort actions for monetary damages. Assault and battery can be the basis of criminal prosecution at a state level as well. While many aspects of criminal law focus on the rights of the criminal, recent attention has been focused on the rights of the victims of crimes, who often suffer great emotional, if not physical, injuries at the hands of the criminal. All fifty states and the federal government now have laws that protect victims. In many states, a victim is considered the person who has directly suffered the effects of the crimes committed against him or her and the victim’s immediate family members who have suffered secondary effects of the crime (such as loss of a loved one). If you, or a family member, have been a victim of a crime, you should speak with a criminal law attorney in your jurisdiction to answer your questions and help you determine the best course of legal action in your situation.

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