Torts Evening- Fall 2007
Professor Ralph Brill
Substantive Reviews
Substantive Reviews



The second intentional tort we surveyed was Assault. It also is a dignitary tort; therefore, it does not require a showing of actual harm.

Plaintiff must plead and prove the following elements:


∙ Intentionally,
∙ By an overt act directed at the Plaintiff,
∙ Caused Plaintiff
∙ To reasonably believe or be aware that
∙ Plaintiff would immediately suffer a battery (i.e., an offensive or harmful contact)
∙ Where Defendant possessed the apparent present ability to carry out the battery
∙ Without consent or other privilege.

The elements of this tort tend to overlap one another to a great extent. Thus, for example, whether one has a reasonable belief of an imminent battery will depend in large part on whether the Defendant had the apparent present ability to carry out the battery.

Assault is an intentional tort, so all of the law related to intent covered in Substantive Review of Intent is applicable. The gist of the tort is the requirement that Defendant acts with either a desire or purpose to cause Plaintiff to believe she/he is about to be struck, or Defendant knows to a substantial certainty that Defendant's act will create in Plaintiff's mind a reasonable belief that she/he is about to be struck. To be absolutely clear then, it is not sufficient that Defendant performed an intentional act (such as swinging an ax or throwing a rock); Plaintiff must show that Defendant had the requisite desire or knowledge that his/her act would create in Plaintiff's mind the awareness or belief that Plaintiff was about to suffer harmful or offensive contact.

The other doctrines relating to Intent are also applicable. Mistake of fact does not negate such intent. Minors and insane people can be found to have formulated such intent. And the doctrine of transferred intent applies to this tort.

The requirements for this tort were established very early in the common law's history, and are quite technical. This is especially true (sometimes frustratingly so) of the requirement that Defendant have committed an overt act directed at plaintiff.

∙ Thus, words alone, no matter how violent, and no matter what fear they engender in the Plaintiff, cannot constitute an Assault. (They may be a basis for a suit for Intentional Infliction of Emotional Distress, however). There must be an overt act directed at Plaintiff.

∙ Even if the violent words are accompanied by some physical act, they are not enough to constitute an Assault unless the act is directed towards the plaintiff as a preliminary to a possible imminent battery. So, orally threatening Plaintiff and putting a gun or club down on a table next to Defendant would not yet be an Assault, no matter how fearful Plaintiff became. Defendant would have to raise the club and be within a distance where he apparently could reach Plaintiff to establish this element. (Again, these acts might be IIED).

∙ While words alone may not constitute the overt act necessary for Assault, they may give color or flavor to an accompanying act, so as to make Plaintiff's belief of an imminent Battery reasonable or unreasonable. Where the parties have been having a violent argument and Defendant suddenly reaches for an inside pocket, Plaintiff may justifiably believe Defendant is reaching for a weapon, and this element could be satisfied. But where Defendant shook his fist at Plaintiff and said “Were you not an old man I would punch your nose,” the words could be found by the trier of fact to have told the Plaintiff that Defendant was not really starting to punch him, since he was an old man, thus not causing Plaintiff to realistically believe he was about to suffer a battery.

∙ Hyper-technical distinctions in the cases abound. It has been held that merely exhibiting a pistol, or bringing a gun to a meeting, is not sufficient to establish Assault; it is not yet an overt act directed at Plaintiff. However, the stationary act of pointing a pistol at Plaintiff is an overt act, even if there is no additional movement, nor has the trigger been pulled.

The element of causation overlaps the other elements. The Defendant's overt act must intentionally create Plaintiff's reasonable belief of an imminent battery. Again, the test for causation would be “but for.” If Plaintiff's belief stemmed from an irrational belief or being told later what had occurred, Defendant's act did not cause Plaintiff's belief in an immediate, or imminent, Battery.

The elements of a reasonable belief of an imminent Battery and that Defendant have the apparent, present ability to carry out the act, obviously are interrelated. Plaintiff must reasonably believe from the circumstances surrounding Defendant's overt act that Plaintiff is about to suffer unwanted offensive or harmful contact from Defendant's overt act.

∙ If Plaintiff is asleep or unconscious, there is no reasonable belief or awareness that the Plaintiff is about to be struck. (The result would be different in Criminal Law, where Assault is defined as an “attempted battery.” Criminal law does not require the victim to be aware of the Defendant's act.)

∙ The same would be true if the Plaintiff is attacked from behind and does not see the attack coming; in that situation, there will be a Battery but not an Assault.

∙ Ordinarily, it would not be a reasonable belief of an imminent Battery if the belief is due to Plaintiff's own idiosyncratic or mentally disturbed beliefs, as where a Plaintiff irrationally believes that a pencil Defendant is pointing at him is really a pistol.

∙ Of course, if Defendant knows that Plaintiff has such an irrational belief, and points the pencil at him knowing it would produce the belief of an imminent Battery, the court could reasonably find the Defendant liable for Assault.

∙ The fact that it would be impossible for Defendant to actually strike Plaintiff under the circumstance does not necessarily make the Plaintiff's belief of an imminent battery unreasonable. That determination would depend on whether Defendant had the “apparent” present ability to complete the act.

∙ Thus, pointing what turns out to be an unloaded gun at the Plaintiff is an Assault even though it would not be possible for Plaintiff to be shot. This would be true even if Defendant told Plaintiff that the gun was not loaded; one can surely disbelieve such a statement in light of all the cases one reads about of people being shot with “unloaded” guns.

∙ Similarly, where Defendant throws rocks at Plaintiff from a distance of 300 feet, the fact that the evidence later establishes that Defendant could not actually hit Plaintiff from that distance does not negate the tort, if the trier of fact concludes that Plaintiff validly could have believed that Defendant's throws could reach Plaintiff. Plaintiff is not required to measure the distance between the parties before having a reasonable belief that he/she is about to be struck by the thrown object. Of course, if the distance is obviously too far away, Plaintiff cannot say his/her belief of being immediately hit was reasonable.

∙ The element of reasonable belief or awareness of an imminent Battery sometimes is expressed in terms of Defendant creating apprehension in Plaintiff of an imminent Battery. The word “apprehension,” however, can be misleading; it has the connotation of “fear.” Fear is not required. The tort of Assault protects against the creation of the mental awareness that one is about to be offensively or harmfully contacted, and it does not matter whether the Plaintiff is afraid or not.

The next element that must be shown is that Plaintiff perceived that he/she would suffer an imminent, or immediate, Battery. Again, this element interrelates with others, such as the requirement of an overt act directed at Plaintiff. It would not be sufficient if the Defendant violently threatened to come over to Plaintiff's house and shoot her; besides not being an overt act, that would not create a belief in an immediate or imminent Battery.