TortsProf Blog

Editor: Christopher J. Robinette
Widener Commonwealth Law School

Saturday, September 6, 2008

Teaching the Distinction Between Assault and Battery

Teaching assault and battery is always fun, as is demonstrating the two are independent torts.  The example I have used when teaching there can be a battery without assault (no apprehension) is that a student could sneak up behind me while I was writing on the board and hit me over the head.  Thanks to 1L Dipinjeet Sehdev, I now have a new example.

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Not a pure example of battery with no assault: he may well have seen the jacket(?) coming down in front and perceived he was going to be "touched" by it. Very dangerous (not funny) conduct by aggressors. It appears he may have been hurt - head slammed on the ground.

Posted by: Richard Wright | Sep 9, 2008 7:26:16 AM

Hi, Richard. I saw your e-mail exchange with Bill a few weeks ago. Thanks for reading the blog.

You raise a good point--it's possible this isn't a pure example of the distinction between assault and battery. I still think it's unlikely the victim both saw the jacket and apprehended harmful or offensive contact from what he perceived, all before the contact occurred. For one thing, he doesn't react to the jacket passing over his head in any way.

I agree with you about the nature of the "joke." I didn't post it because I thought it was funny.

Posted by: Chris Robinette | Sep 9, 2008 1:56:28 PM

Hi Chris. I didn't mean to imply that you thought it was funny.

As for the assault issue, I don't think he has to perceive a harmful or offensive contact, merely an imminent physical contact, for which there was no consent. (Just as I believe the aggressors don't have to intend a harmful or offensive contact, but merely a physical contact, for which there was no consent.) His apparent lack of reaction (can't see his eyes) is a good fact for students to consider on the perception issue, but (1) he hardly had time to react and (2) if he saw it coming down toward him, he had no reason to expect it would cause serious impact rather than merely brushing against him (e.g., if tossed onto him). Good example (although not funny) for students to consider how fact intensive these situations are. Thanks.

Posted by: Richard Wright | Sep 9, 2008 3:25:12 PM

I'm with you on single versus dual intent. I'm not sure about the apprehension issue. I frequently see assault described as apprehension of a battery, which seems to include the element of harmful/offensive. The assault case in Franklin, Rabin, & Green defines the relevant part of assault as "reasonable fear of imminent bodily harm" (or something very similar). Single intent (especially with battery) makes sense because the contact can still be very harmful, even if the harm itself was not necessarily desired. With regard to apprehension, assault liability for mere apprehension of a contact that is neither harmful nor offensive does not seem compelling.

Posted by: Chris Robinette | Sep 9, 2008 6:47:14 PM

This discussion threatens to branch out too widely, but I also disagree with adding a "harmful or offensive" gloss to the physical contact requirement for a battery. Among many other unfortunate wordings in the Restatement on the trespassery intentional torts (such as use of the "apprehension", which incorrectly connotes "fear", rather than "perception", and describing the required legal injury for an assault as an "imminent apprehension" of a physical contact rather than "perception of an imminent physical contact"), the Restatement Second (but not the first) leaves out the "lack of consent" requirement in the prima facie case for both assault and battery, which it instead buries in a few obscure comments. A touching without consent or authorization is inherently offensive. So the additional requirement that it be "harmful" is incorrect, and that it be "offensive" is redundant. All touchings without consent are inherently offensive to the person touched. The consent can be actual, apparent, or implied by law (e.g., for ordinary social usages, unless explicitly objected to and known to be objected to, and even then if the objector is an extrasensitive person trying to "hold up the rest of the world"). Back to the video: It is not required that the victim perceive the imminent touching as offensive at the time of perception, but that the victim perceive the imminent touching, which turns out to be offensive, which is the case if there was no consent (actual, apparent, or implied by law). There clearly was no consent in this incident, and the touching clearly was offensive.

Posted by: Richard Wright | Sep 10, 2008 7:17:26 AM

That's interesting. Though it seems to undermine the legitimacy of assault as an independent tort (at least in cases where there is both an assault and a battery). There is now very little difference between the harm from the battery and the harm from the assault. You can stipulate a distinction, but it is akin to having a separate cause of action each for pain and suffering. To bring the discussion full-circle, the theory doesn't have that problem in pure cases of assault without battery.

Posted by: Chris Robinette | Sep 10, 2008 1:16:22 PM

There is a big difference. Just as cases of assault without battery are common, cases of battery without assault are common. Take your initial example of someone sneaking up behind you, unperceived, and hitting or striking you from behind, or firing a bullet at you from an unseen position with a silencer on, or kissing you or otherwise touching you while you are sleeping or unconscious. Just because they often go together, like eggs and ham/bacon (as I tell my students), does not mean they are not quite distinct torts with quite distinct harms. The harm for the battery is the touching, for which there was no consent. The harm for the assault is the perception of an imminent touching, for which there was no consent.

Posted by: Richard Wright | Sep 10, 2008 1:33:28 PM

I wasn't clear in my last post. You're right that there is a sound theoretical distinction between assault and battery. I'm saying that under your theory I'm not convinced there are practical reasons to draw it in cases where there is both perception and contact. The independent harm from the assault, if all that is required is perception of a contact (regardless of whether it is harmful or offensive), is very small. It's the contact itself that creates the harm. It is already debatable whether a plaintiff should recover for two separate torts for what is essentially a common nucleus of fact (defendant swings his fist at victim--victim sees it on the way--victim gets hit). Under the standard that you have to perceive harmful or offensive contact, at least the plaintiff can argue that it was worse because there was a period when she knew something bad was imminent. If that period of apprehension is taken away, I'm not sure the game is worth the candle. All the damages can be assessed pursuant to the battery claim.

Posted by: Chris Robinette | Sep 10, 2008 4:38:17 PM

As I did not note until just before using this clip in class, but as my brilliant students saw on their own, the required legal injury for an assault -- the victim's perception of an imminent physical contact with his person, for which there was no consent -- clearly existed in this case in the form of the victim's undoubtedly perceiving as he was falling that his body was about to hit the ground (cf. Garratt v. Dailey). If it makes any difference (I do not think that it does or should), the physical contact with the ground also clearly was offensive and may have been harmful. The intent requirement also is clearly satisfied. The defendants likely had the knowledge that their conduct was nearly certain to cause the victim to perceive that he was about to hit the ground, and if not the clear intent to batter the victim can be transferred to satisfy the intent for the assault action.

As for Chris's last post, there indeed may not be much of a practical difference in terms of damages (but there could be given the two distinct injuries, if the plaintiff's lawyer stresses that), but that is often the case when there are several alternative causes of action. Moreover, there is the same lack of a practical difference under the theory (with which I, Dobbs, and many courts disagree) that battery, and hence assault, require respectively a harmful or offensive contact or the perception of an imminent harmful or offensive contact.

Posted by: Richard Wright | Sep 19, 2008 6:26:28 AM

You're right. He definitely saw the second contact coming. I'm back to getting hit over the head as I write on the board.

Posted by: tortsprof | Dec 15, 2008 4:17:00 PM

I have a new example for you. Get a load of this one.

**Joe and Marty are bar patrons. Joe is there with his mother.
**Marty calls Joe’s mother a fat cow to her face.
**Joe shoves Marty.
**Marty takes a swing at Joe.
**Joe ducks and swings back, punching Marty in the face and knocking him unconscious.
**Marty is lying unconscious on the ground.
**Joe proceeds to stomp on Marty’s head, injuring him seriously, and sending him to the hospital.
**Marty files a pro-se civil suit against Joe (who retains an attorney), alleging battery and referring only to the head stomping after he was knocked unconscious.
**Joe’s Lawyers seek to demonstrate self defense on the part of Joe. Joe produces witnesses that say Marty attacked Joe. Joe’s mother also says that Joe insulted her.
**Marty files a motion to suppress any evidence or testimony regarding the fight and who started it, since with Joe’s witnesses, will contaminate a traditional “deep south” jury that, regardless of the legal aspects, will make their decision based on their notion of “Marty had it comin. Got what he deserved. A man doesn’t insult another man’s mother.”
** The judge denies the motion to suppress.

Is this correct? Or is Marty correct in asserting that the battery after he was unconscious is a separate act. He had no apprehension because he was unconscious. He had no means to react or defend himself. It also is irrelevant who started the confrontation or who the assailant was. Because no matter who it was, one of them was knocked out, and there was no further threat. The fight was over.

So how is that for another example? It seems a judge doesn’t agree with your view that battery can be separate from assault.

Posted by: Stan Morse | Jan 27, 2018 10:47:27 AM

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