Assault
Assault protects your sense of security from an imminent contact, even when no contact ever lands.
14. Assault
An actor is subject to liability to another for assault if (a) they act intending to cause an apprehension of an imminent harmful or offensive contact with the person of the other, and (b) the other person experiences that apprehension. Restatement (Second) of Torts § 21 (1965).
- The elements of assault are (1) intent to cause an apprehension of an imminent harmful or offensive contact in another person; (2) the other person reasonably suffers that apprehension; and (3) the defendant caused the apprehension.
- The defendant’s act must be voluntary.
- The intent requirement includes either purpose (desire) or knowledge to a substantial certainty that the apprehension of an imminent harmful or offensive contact will occur.
- The defendant is liable if they (1) intend to cause the apprehension of a harmful or offensive contact that a reasonable person would find offensive, or (2) intend to cause apprehension of a contact that they know the other person would find harmful or offensive.
- The apprehension must be reasonable, meaning that the actor had the apparent (not necessarily actual) ability to accomplish the threatened contact.
- A harmless motivation, such as that the action was taken in good-natured tomfoolery, or as a joke, does not negate the potential finding of the requisite intent.
- As with negligence (concept 8), causation is typically established by showing that the defendant’s action was a “but for” cause of the apprehension.
- Apprehension is not synonymous with fear, but rather means recognition or anticipation.
Assault protects your sense of security from an imminent contact, even when no contact ever lands. Apprehension means anticipation, not fear, and what matters is the defendant's apparent ability to carry out the threat, not actual ability.
Assault protects your sense of security from an imminent contact, even when no contact ever lands. Boil it to four moving parts.
- 1A voluntary act by the defendant.
- 2Intent, which here means the defendant either wanted to cause the apprehension or knew to a substantial certainty it would occur.
- 3An apprehension of an imminent harmful or offensive contact, judged by whether the defendant had the apparent ability to carry the threat out.
- 4Causation: the defendant's act was a but-for cause of that apprehension.
Two corollaries do most of the work on the exam. Apprehension means recognition or anticipation, not fright, so a calm, unafraid plaintiff who simply sees the blow coming has still suffered apprehension. And the contact must be imminent, which is why a threat of future harm, or bare words with nothing more, usually will not do: there is no about-to-happen contact to anticipate. The apparent-ability rule is the mirror image. An unloaded gun the plaintiff reasonably believes is loaded still creates apprehension, because what matters is the appearance of present ability, not whether the defendant could actually have completed the contact.
Apprehension is not fear, so a calm plaintiff still wins. A threat of future harm or bare words with no menacing act usually fail for lack of imminence. And apparent ability, not actual ability, is enough.
A-I-C-C: a voluntary Act, with Intent, causing an apprehension of imminent Contact, and Causation.
That is the whole tort.
anticipation, not fear.
The plaintiff just has to see it coming.
A fearless plaintiff is still a victim if a reasonable person would have anticipated the contact.
imminent or it is not assault.
"I'll get you next week" is a threat, not an assault.
Words alone, with no menacing act and no apparent present ability, generally do not create apprehension of an imminent contact.
apparent, not actual, ability.
An empty gun the plaintiff reasonably thinks is loaded is still an assault.
Look at the appearance, not the reality.
A delivery courier and a shop clerk argue at a counter. The clerk grabs a stapler, cocks her arm as if to hurl it, and steps toward the courier from two feet away. The courier is a former boxer who is not the least bit frightened, but he plainly sees the throw coming and braces for it. No throw is ever made.
Suppose the clerk had only said, from across a locked security partition, "one day I'll get you for this," with no gesture and no way to reach him.
An option says the plaintiff must have been 'afraid' or 'in fear for his safety,' often paired with a stem stressing that the plaintiff was calm or unafraid.
Apprehension is recognition or anticipation, not fear. A plaintiff who anticipates the contact suffers apprehension even with no fright.The stem sets the threatened contact in the future (next week, someday) or behind a barrier, and an option treats the future threat as an assault.
The apprehended contact must be imminent. A threat of future harm is not an assault.An option turns on whether the defendant could 'actually' carry out the threat, for example an unloaded or toy weapon.
The apprehension need only be reasonable, which requires apparent, not actual, ability. A weapon reasonably believed capable still creates apprehension.An option leans on motive, such as 'it was only a joke' or 'no harm was meant.'
A harmless or joking motivation does not negate the requisite intent to cause apprehension of an imminent contact.the stem hands you a menacing gesture or threatened contact that never lands, and the call asks whether the target has an assault claim.
The instant you see a raised fist, a pointed object, or a lunge with no actual touching, run the four parts: voluntary act, intent, apprehension of an imminent contact judged by apparent ability, and but-for causation.
Watch two tells the drafters plant.
If the stem stresses that the plaintiff was calm or unafraid, the tested point is almost certainly that apprehension is anticipation, not fear.
If the stem stresses a future timeframe, a barrier, or words with no gesture, the tested point is imminence (or the lack of apparent present ability).
During a heated dispute over a parking space, a driver stepped close to a cyclist, drew back a clenched fist, and swung it toward the cyclist's face, stopping just short of contact. The cyclist, a former competitive fighter, was not the least bit frightened, but he clearly saw the punch coming and jerked his head back. No blow ever landed. The cyclist sued the driver for assault, and the driver argued that the cyclist admitted he was never afraid.
Is the cyclist likely to prevail on his assault claim?
After losing an argument with a neighbor, a tenant pointed at the neighbor and said, calmly and from across the street, that he would track the neighbor down and beat him sometime the following month. The tenant made no threatening gesture and then walked away. The neighbor anticipated trouble down the road but understood that nothing was about to happen at that moment. The neighbor sued the tenant for assault.
Is the neighbor likely to prevail on his assault claim?
A customer telephoned a contractor to complain about a repair and, during the call, said in a menacing voice that he was going to come over and break the contractor's arm. The contractor, who was alone at a worksite many miles away, took the words seriously but knew the customer was nowhere nearby and could not reach him then. The customer made no move toward the worksite. The contractor sued the customer for assault.
Is the contractor likely to prevail on his assault claim?
Angry at being refused a refund, a shopper pulled a realistic-looking handgun from his jacket and aimed it at a store manager from a few feet away, telling her not to move. The manager reasonably believed the gun was real and loaded and braced to be shot. In fact the gun was a toy incapable of firing, though nothing about its appearance revealed that. The manager sued the shopper for assault, and the shopper argued the gun could never have hurt anyone.
Is the manager likely to prevail on her assault claim?
As a prank, an office worker crept up behind a colleague, raised a stack of binders high over the colleague's head as if to slam them down, and shouted. The colleague turned, saw the binders poised to strike, and flinched away, reasonably anticipating the blow. The worker, who meant only to startle the colleague for a laugh, lowered the binders and grinned. The colleague sued for assault, and the worker argued it was just a good-natured joke.
Is the colleague likely to prevail on his assault claim?