Assault

Let's move on to talking about assault. In popular culture and TV shows, frequently you hear the term "assault and battery". As a result, many people think that assault is referring to actually causing the injury itself: beating someone up, punching them kicking them, etc... But when we're talking about intentional torts, assault isn't about the actual physical contact that causes the plaintiff physical injury. That's battery, and that's the intentional tort we just discussed. Instead, assault is about causing apprehension and fear in the plaintiff that there is going to be an imminent battery. As a result, battery is about the contact, assault is about the fear. Now, just like battery, assault also has three elements.

Elements of Assault

The three elements of assault are: first, that the defendant acted with required intent; second, which arouses in the plaintiff a reasonable apprehension; third, of an imminent battery.

Element 1: Intent

Now, let's put aside intent because we've already talked about it and focus on the other two elements, reasonable apprehension and imminent battery.

Element 2: Reasonable Apprehension

Starting with reasonable apprehension, you might think of apprehension as fear, but in the tort context, it actually has a slightly different meaning. Generally, when we review an element, it's important to understand their legal meaning, not their day-to-day meaning.

For instance, remember intent? We talked about the legal meaning of actual and implied intent in torts. The meaning is different from our day-to-day usage and it's even different from the meaning in the context of criminal law. The same goes for other elements under tort law and reasonable apprehension is a good example of that. So, pay attention and make sure you understand the legal meaning of each element in the specific context of intentional torts. So, what's apprehension in the context of assault? Apprehension means knowledge or awareness. The plaintiff has to have knowledge that he or she may be touched, or more accurately, that she or he may suffer offensive or harmful contact with that person.

If the plaintiff is not aware of the battery, or she didn't see it coming, it's not assault. The defendant does not have to fear for his or her safety to win a claim of assault. For example, imagine a short skinny man named Paul threatens to hit Dylan, a very large and strong man. Dylan thinks to himself, This is funny, I'm not so afraid of this skinny guy. In this instance, is it assault? Still yes, because when Paul threatened Dylan, even though Dylan was not particularly afraid of the consequences of being hit by Paul, he still may have had an apprehension of an immediate battery.

Example: Apprehension Doesn’t Entail Fear

Now, you see the key difference here is the difference between apprehension and fear and this is the kind of thing that can trip you up in the bar exam. If the question asks, "Was small Paul liable for assault?" any answer saying, "No, because Dylan wasn't afraid," is incorrect because fear has nothing to do with it. The question is whether or not there was reasonable apprehension of an immediate battery.

Idle Threats

The second point about apprehension concerns idle threats. What if someone bluffs and threatens a battery, but can't actually complete it? This is what we refer to as an unloaded gun problem. Imagine that Daniel takes a gun and threatens to shoot Peggy, but there are no bullets in the gun. Is it assault? Once you understand that apprehension is knowledge and that the focus is on the plaintiff's knowledge, the answer becomes clear.

If Peggy knew that the gun was unloaded, then it's not assault; however, if she thought that the gun was loaded, Daniel is liable for assault.

Apparent Ability (to Harm)

What if Peggy lacks information and simply doesn't know if the gun is loaded or not? The general rule is that the plaintiff will be allowed to recover so long as that it's reasonable or possible that battery could occur.

If Peggy lacks information, it would be reasonable for her to assume that the gun was loaded. After all, firing bullets are the purpose of carrying guns around, therefore, she would have reason to know which is enough to recover for assault. In legal terms, an apparent ability creates a reasonable apprehension.

Element 3: Imminent Battery

Now, let's dive into the final element of assault, imminent battery. The apprehension, the knowledge, must relate to an immediate battery, an immediate harmful, or offensive contact to the plaintiff's person. What that means is that words alone that are unaccompanied by any conduct lack immediacy. A verbal threat alone is never an immediate threat. It may sound immediate, but if it's purely verbal, it's not.

The defendant must engage in conduct in order for the threat to be considered an assault, conduct means at a minimum, some kind of menacing gesture.

Example: Purely Verbal Threat

Let's take a look at an example to illustrate it. If Daryl is sitting next to Pete at a bar and threatens Pete by saying, " I'm going to punch you," is it assault? No, Daryl has not placed Pete in an apprehension of an immediate battery, even though he threatened to punch Pete in the immediate future. A verbal threat is not enough. Daryl needs to engage in conduct, by say, displaying a weapon or shaking his fists in order to be liable for assault. There must be some kind of menacing gesture beyond just the words alone.

Words Can Negate Immediacy

However, words can give meaning to gestures. Sometimes when a menacing gesture is accompanied by words, words can negate immediacy.

Example 1: “Non-Immediate” Future

You have to notice the nuances of the fact patterns you'll receive. If Daryl is shaking his fists at Pete while simultaneously shouting, " I'm going to hurt you tomorrow. I'll find out where you live and punch you tomorrow," and then turns and walks away, this would not be considered an assault. Although there is a menacing gesture that suggests an immediate contact, the accompanying words indicate that Daryl promised action in the future, but has no intention of placing Pete in apprehension of an immediate battery. Words that place the threat in the non-immediate future would negate the threat.

Example 2: Conditional

Additionally, words that make the threat conditional can also negate the threat. For instance, if Daryl were to shake his fists and say, " If you weren't wearing a cowboy hat, I would hit you," but Pete was in fact wearing a cowboy hat, this wouldn't create an apprehension of an immediate assault and, thus, would negate the immediacy of the potential battery.