Assault & Battery

Two common types of personal injury torts are assault and battery. Battery is often confused with assault, and the two terms are often intermingled and perceived as one tort. In actuality, they are two separate torts and must be regarded as such. An assault is an act that creates a reasonable apprehension of an imminent battery. A battery is the intentional and unpermitted physical contact with another by either an individual or an agency set in motion by an individual.

With respect to assaults, all that is required is that the plaintiff perceive a threat that is regarded as imminent. It is not necessary that the plaintiff actually be frightened or intimidated. The focus of the inquiry is whether the apprehension is reasonable. In that regard, for example, where a defendant approaches an individual and says, in a matter-of-fact manner, "If the Bulls don't win the finals this season, I might have to hurt someone," it is unlikely that the plaintiff could successfully bring a claim against the defendant for assault.

In many cases it is held that mere words are not enough to constitute an assault, and that there must be some accompanying overt act. In certain situations, a normally inoffensive movement, such as holding up an arm or reaching into a pocket, when coupled with offensive words, may be enough of an overt act to establish the tort of assault. In the same vein, a threatening gesture when accompanied by words negating any intent to render harm may not be considered an assault if a reasonable person would not perceive an immediate danger of a battery. For instance, if you approach someone shaking your fists, but saying "one of these days, I am going to get even with you" as you smile brightly and laugh, your actions may not constitute an assault, if a reasonable person would conclude you were joking.

In order to recover on an assault claim, the plaintiff must establish that the defendant was actually capable, at the time the threat was made, of carrying it out. Therefore, if the defendant, who was incarcerated, yells at the plaintiff from behind bars that he would like to punch him "right then and there," it is unlikely that an assault has occurred. However, where the plaintiff reasonably believes that the assault could occur, even though the defendant is not actually capable of carrying out the threat, an assault has occurred. For example, i