Personal injury is generally thought of as a result of carelessness or negligence, but there are many types of intentional torts that are caused by the direct action of one person against another. Assault is a criminal offense, but it is also a cause of action in a civil court. Assault does not require the victim to actually be touched, rather it is the attempt or threat to inflict bodily harm.
The Elements of Assault
Not all threats can be considered to rise to the level of assault. To be considered an actionable offense that would hold up under the scrutiny of a lawsuit, the assault must have two elements:
- The act was intended to cause apprehension of harmful or offensive contact.
- The act did cause apprehension in the victim harmful or offensive contact would occur.
In short, the victim has to believe that the threats made to them were intended to be real. If the victim believes the defendant is going to shoot him/her, the defendant needs to actually have a gun in his/her hand when the words are spoken. Assault in not an empty threat, it is a believable threat. The action must be immediate.
A case for assault requires “intent,” and it is much easier to make a case for “intent” if it can be shown that the defendant was capable and able to follow through with the threats he/she made. Pointing a loaded gun at someone’s head would certainly result in an apprehension for the victim. Pulling the trigger of an unloaded gun would have the same effect on the victim.
Apprehension is not to be confused with fear. Apprehension, in this case, means that the victim is aware the injury or offensive behavior is imminent. The defendant’s actions and words must be able to produce apprehension in a reasonable person. What defines a reasonable person is very subjective.The mind of a child is much different from the mind of an adult, so the apprehension is different, as well. The victim might have a history of abuse or some events in their life that would make a direct threat more apprehensible to them, than to another person.
What Does Not Rise To The Level of Assault?
Looking at the two elements necessary for a civil assault case, the victim must believe the threat is imminent, and the defendant deliberately desired to cause apprehension in the victim. Given the definition, the following scenario would NOT be assault:
- Pointing a gun at a sleeping person
- Threatening to come back with a gun
- Making offensive or threatening remarks over the phone
These circumstances, although unsavory, do not give rise to the intentional tort of assault. In the first situation, the victim was sleeping, so the apprehension necessary is absent. They did not know they were in danger of any kind. The second and third situations do not have the immediacy needed for an assault claim. There are many types of intentional torts; assault is just one example.
If you have suffered a personal injury, call The Law Offices of W.T. Johnson today.