The intentional tort of assault is an act intended to cause apprehension of an imminent harmful or offensive contact, which directly or indirectly causes reasonable apprehension of such contact.
The interest protected by the tort of assault is freedom from reasonable apprehension of imminent harmful or offensive contact. This aspect of the claim thus breaks down into two sub-elements:
- The act must be one that would create apprehension of an imminent battery in the mind of a reasonable person; and
- Plaintiff must actually experience such apprehension.
Apprehension refers to a reasonable expectation of the contact, not to a fear of it. Thus, if little Defendant swings his small fist at big Plaintiff’s jaw — but does not connect — Defendant will be liable for assault, even if Plaintiff has no fear of his punch. Further, the apprehension of an imminent battery must be one that would form in the mind of a reasonable person, not the inflated fears of the excessively timid.
According to the Restatement (Second) of Torts, § 29(1), Comment b, “[t]he apprehension created must be one of imminent contact, as distinguished from any contact in the future. ‘Imminent’ does not mean immediate, in the sense of instantaneous contact, as where the other sees the actor’s fist about to strike his nose. It means rather that there will be no significant delay.”
Usually verbal threats alone are not sufficient, unless accompanied by circumstances that create an apprehension of imminent battery (i.e., contact with no significant delay). For example, an unarmed Defendant who says, “I think I’ll go get my gun and shoot you,” is not liable for assault; but an armed one who, fingering the trigger, says, “I think I’ll shoot you,” may be liable.
Also, a conditional threat is not imminent. For example, when Defendant, carrying an axe handle, says to Plaintiff, “If I catch you with Jenny again, I’ll bash your head in,” he is not liable for assault because the threatened contact will take place, if at all, only on the occurrence of some future contingency.
California Civil Jury Instructions (CACI) No. 1301. Assault—Essential Factual Elements
[1. That [name of defendant] acted, intending to cause harmful [or offensive] contact;
2. That [name of plaintiff] reasonably believed that [he/she] was about to be touched in a harmful [or an offensive] manner;]
[1. That [name of defendant] threatened to touch [name of plaintiff] in a harmful [or an offensive] manner;
2. That it reasonably appeared to [name of plaintiff] that [name of defendant] was about to carry out the threat;]
3. That [name of plaintiff] did not consent to [name of defendant]’s conduct;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.
[A touching is offensive if it offends a reasonable sense of personal dignity.]
[Words alone do not amount to an assault.]
New September 2003; Revised October 2004, June 2005
Directions for Use
For a definition of “intent,” see CACI No. 1320, Intent. The last bracketed sentence should be read in cases in which there is a dispute as to whether the defendant’s conduct involved more than words.
Sources and Authority
- “ ‘Generally speaking, an assault is a demonstration of an unlawful intent by one person to inflict immediate injury on the person of another then present.’ A civil action for assault is based upon an invasion of the right of a person to live without being put in fear of personal harm.” (Lowry v. Standard Oil Co. of California (1944) 63 Cal.App.2d 1, 6—7 [146 P.2d 57], internal citation omitted.)
- “The tort of assault is complete when the anticipation of harm occurs.” (Kiseskey v. Carpenters’ Trust for Southern California (1983) 144 Cal.App.3d 222, 232 [192 Cal.Rptr 492].)
- Restatement Second of Torts, section 21 provides:
(1) An actor is subject to liability to another for assault if
(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
(b) the other is thereby put in such imminent apprehension.
(2) An action which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of causing it and, therefore, would be negligent or reckless if the risk threatened bodily harm.
- Words alone do not amount to an assault. (Tomblinson v. Nobile (1951) 103 Cal.App.2d 266, 269 [229 P.2d 97].)
- Restatement Second of Torts, section 31 provides: “Words do not make the actor liable for assault unless together with other acts or circumstances they put the other in reasonable apprehension of an imminent harmful or offensive contact with his person.”
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 381—416
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.01 (Matthew Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.15 (Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.20 (Matthew Bender)
1 California Civil Practice: Torts (Thomson West) §§ 12:3—12:6