- Jeff Vail vail-law.com
This article is part of Vail Law’s open-source litigation and legal risk management checklist. Connect with me on LinkedIn.
The torts of assault and battery are commonly paired together in the public perception – but in fact battery is what most people think of when they say assault. Assault, on the other hand, is the tortious act of putting someone in fear of physical harm – battery, in contrast, is the act of actually tortuously causing physical harm to someone’s body.
The elements of assault are:
(1) Defendant intended to cause an offensive or harmful physical contact with the plaintiff, or intended to place the plaintiff in apprehension of such contact; and
(2) The defendant placed the plaintiff in apprehension of immediate physical contact.
There is no requirement for actual contact or physical harm – the tort of assault is about the intentional creation of fear of physical harm. Accordingly, it is both possible and likely that a single incident will give rise to both the tort of assault and battery. However, this is not necessarily the case – if someone snuck up behind a person and hit them on the head with a club, that would be battery (intentional physical contact causing harm) but not assault (they had no fear of it occurring).
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