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An assault is an intentional act that causes an apprehension or fear of imminent harmful or offensive contact based on a defendant’s present ability to do so. The defendant must have the apparent ability to commit the assault, even if he or she is not actually capable of causing an injury. An assault is committed even if the contact never occurs.
A defendant must intend to commit assault. Thus, a plaintiff must prove that the defendant intended either to cause the apprehension or fear of contact or to cause the actual contact itself. The plaintiff, however, is not required to show that the defendant had any feelings of ill will or malice towards the plaintiff. The defendant’s intent may also be transferred so that an intent to cause apprehension or contact upon one person actually causes another person to be placed in apprehension.
Examples of acts that constitute an assault include swinging a fist at a person without hitting him or her, holding a loaded or unloaded gun to a person’s head without firing, and throwing an object at one person that causes a nearby person to be placed in apprehension. Examples of acts that do not constitute assault include telling a person that he or she will be harmed at a future date and sneaking up behind a person with a gun to his or her head and walking away before the person is aware that the actor had a gun.
A battery is an intentional physical contact with a person without his or her consent that results in bodily harm or is offensive to a reasonable sense of dignity. An act is a battery if it causes physical pain or injury to a person’s body. It may also be an act that is offensive to a reasonable person. Ordinary bumping that occurs while walking through a crowd is generally not offensive to a reasonable person; however, intentionally pushing people in a crowd out of the way may be offensive to a reasonable person. In addition, a defendant may be liable if he or she commits an act that would not be offensive to a reasonable person but that offends a sensitive plaintiff, whom the defendant knew to be a sensitive person. The defendant need not actually touch the plaintiff using his or her body; the contact may be caused indirectly. Also, the plaintiff need not be aware that the contact actually occurred, unlike the requirement in assault cases that the plaintiff must be aware and be placed in apprehension of a contact.
A defendant must intend to make contact with a plaintiff to constitute a battery. The defendant may be liable for a battery even if he or she did not intend to harm the plaintiff. The defendant may also be liable for a battery even if he or she intended only to commit an assault if he or she acts with such intent and accidentally causes the offensive contact.
Examples of acts that constitute a battery include playing a joke on a person that involves offensive contact, performing surgery on the incorrect portion of a person’s body, throwing an object at 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 touching a person as passengers board a crowded subway.
Assault and Battery
An assault and battery is the intentional touching of a person without an excuse. A battery almost always includes an assault. However, it may not include an assault. For example, if a defendant sneaks up behind a person and strikes him or her without the person’s prior knowledge that the contact was about to take place, there is no assault because the person was not placed in apprehension of the contact.
A plaintiff may recover monetary damages for an assault and battery, depending upon the type of injury. However, the plaintiff need not prove damages in order to hold a defendant liable for a battery. If the plaintiff receives physical injuries, compensatory damages may be available to compensate the plaintiff for medical bills and lost income. The plaintiff may recover nominal damages if an offensive contact occurred but did not cause physical injury. Punitive damages are also available if the defendant’s conduct was outrageous.
An actor who has otherwise committed an assault and/or battery may not be liable for his or her actions. If a person has consented to being touched, an actor is not liable for a battery. An actor may use reasonable force in self-defense or to defend another person if he or she reasonably believes that he or she or another person is about to be harmed. Under certain circumstances, an actor may also use reasonable force to defend his or her property. Parents and others in disciplinary roles are also privileged to use reasonable force in disciplining a child.