3. What is “assault and battery”?
Two commonly recognized intentional torts are “assault” and “battery”.
• Assault – Acting to place another person in immediate apprehension of a harmful or offensive physical contact. There are several elements to this tort. First, the individual must intentionally act and the action cannot be unconscious or inadvertent. Second, the individual witnessing the act must sense or apprehend immediate contact. Apprehension is more than fear. While the individual may also be scared, fear or intimidation is not required; rather, she only need be aware that a touching is likely to ensue. The apprehension of the touching is judged by a reasonable person standard. That is, would a reasonable person believe that physical contact is imminent. Lastly, the contact must be harmful or offensive. Offensiveness is judged based upon a reasonable person in the individual’s situation.
⁃ Example: A person picks up a baseball bat and begins walking toward another person in a menacing manner. If the second individual reasonably believes that the first individual is going to hit him with the baseball bat, this is an assault. The second individual is in immediate apprehension of a harmful touching. The same situation could apply if the second individual believed that she would be touched inappropriately (such as groping of fondling), which would be considered offensive touching.
• Battery – A battery is an illegal touching of another. The touching is harmful or offensive and done without justification and without the consent of the person touched. A battery often accompanies an assault.
⁃ Example: In the above example, actually hitting the individual with the bat or touching the individual in an unwanted sexual manner would be a battery.
• Note: An individual can be assaulted but not battered (and vice versa). A battery without an assault occurs when the individual was not aware in advance or did not see the battery coming.
• Discussion: Why do you think assault and battery are separated into different causes of action? Should one cause of action be more severe in liability than the other?
• Practice Question: Erin is very angry at Marshall. She walks up behind him and acts as if she is going to hit him with a baseball bat. Fortunately for Marshall, she decides against her plan before Marshall becomes aware. Still annoyed, however, she walks up to Marshal and slaps him in the face. Marshall did not expect to be slapped and was taken totally by surprise. If Marshall sues Erin, what causes of action will likely prevail?