The Tort of Assault and Battery

Updated on August 21, 2017
Colleen Swan profile image

Colleen is an attorney in the United States, and a solicitor on the roll in England and Wales


What Constitutes Tortious Assault?

While wording might differ slightly in various texts, assault is generally defined as the intentional instilling in a plaintiff the reasonable apprehension of an immediate harmful or offensive contact. The plaintiff must show, to a court’s satisfaction, each of these elements have been met by the defendant’s conduct.

One major complication of tort law for those beginning its study is its use of words deployed in day-to-day conversation, transformed enough to generate a degree of bewilderment when utilized in tortious terms.

The word “apprehension”, for instance, evokes a sense of fear and alarm. In tortious assault, while those emotions are, in all likelihood, experienced, it is enough if the plaintiff felt a reasonable belief in some type of imminent harmful or offensive contact.

The Difference Between Criminal and Tortious Assault

In criminal law, assault and battery are frequently seen as two parts of one unit, conjoined in the same sense as law & order, shoes & stockings, fish & chips, bread & butter, - extending to passionate duos such as Romeo & Juliet or Antony & Cleopatra.

Criminal assault entails a physical attack on the person of a plaintiff. While the degree of intent is essential, criminal courts tend to be more concerned with the defendant’s conduct than with the plaintiff’s response. In a civil case, the tort of assault can be easily adjudged on a separate basis from the tort of battery.

So justice while she winks at crimes, Stumbles on innocence sometimes.

— Samuel Butler

Barbarisms of Bar Examiners

Bar exams tend to be as concerned with an examinee’s theoretical understanding of law and analytical ability, as well as its practical application. For this reason, a fact situation is often presented where intellectual and visceral responses diverge to an extreme degree. Hence, if brain and soul occupy the same battle zone, it is generally advisable to place the brain at the helm.

A typical bar exam scenario might involve CY, a twenty-year-old biker repeatedly riding his motorbike onto ninety-year-old Nelly’s land.

On one such afternoon, Nelly lunges out from behind her hedge. CY, startled, stops his motorbike long enough for Nelly to approach him opening and closing a pair of bladed garden shears towards his face, shouting, “You have frightened my poodle too often; this time, I will make sure you regret it.”

With that, still menacing CY with her shears, Nelly spits at him, spewing his face with saliva. Despite their age difference of well over half a century, if CY brings Nelly into civil court based on a charge of assault, he is likely to triumph. How can this occur?

Case: CY vs Nelly

By darting out unexpectedly from behind her hedge, Nelly doubtlessly intended to startle CY. Having succeeded, she voiced her intention to force him to regret having frightened her poodle. Accompanying these words with her flexing of shears, combined with her outpouring of spittle, she has placed him in danger of physical harm, and touched his face in an offensive manner.

Given the framework of her vengeful behavior, her use of the phrase “this time" satisfies the element of immediacy.

Lastly, Nelly’s springing out as she did, frustration fueled by adrenaline, arguably startled him into numbness to the point of causing brief immobilization. At any rate, to spit in someone’s face not only exposes that person to any contagion the saliva might harbor, but is also an insult, transcending linguistic use, of contempt, and offensiveness.

Roots and Development of The Tort of Assault

In early civil law, a claim of assault stemmed from that of Trespass. Therefore, in an early assault case, (the names of the parties have been lost), a tavern-keeper brought a claim against a defendant for having come upon his place of business long after closing time, and assaulted his wife.

At this time in history, a wife, perceived as an extension of her husband, could not bring a claim on her own behalf. Still, as a husband’s claim was viewed as representing the two, his claim was viewed as encompassing his wife’s apprehension.

Apparently, this couple lived in a house joined to their business premises. A would-be customer, determined to obtain an alcoholic beverage well after midnight, appeared at their window, demanding to be served. The tavern keeper’s wife, awakened and alarmed, ordered this intruder to leave. At that point, producing a hatchet, he attacked the outer wall of the tavern.


Furious and horrified, the wife leaned her head out of the window and ordered him, in a more definite way, to leave their property. At that point, the defendant, though swinging his hatchet in her direction, withdrew from any further effort to attempt harmful or offensive contact.

The Law Begins to Recognize Assault as Distinct from Trespass

Returning to our analysis of elements, the defendant having brought and deployed a hatchet in hopes of obtaining alcohol, clearly intended, if refused, to instill a reasonable apprehension of immediate harmful or offensive contact, via demands shouted through a window, during darkness and silence.

The initial court decreed assault by the defendant had not occurred, in that the defendant made no actual use of his hatchet.

Still, the tavern-keeper prevailed, when a higher court maintained harm had been done by means of a trespass, combined with the implicit threat instilled by the raising of a weapon against an unarmed woman, startled from slumber. This resulted in the awarding of money damages by the defendant to the plaintiffs.

If you study the history and records of the world you must admit that the source of justice was the fear of injustice.

— Horace

Potential Arguments Against Charges of Tortious Assault

In order to validate such a claim, a victim must be able to prove his reasonable belief in the immediacy of harmful or offensive contact. Thus, if a defendant renders a plaintiff unconscious, then, holding a loaded gun to his temple, says, “I will fire this gun within the next twenty seconds,” the plaintiff has no legitimate claim for assault, even if this threat was recorded.

Although the words and action combined could be viewed as instilling a reasonable belief in immediate or harmful contact, if the plaintiff has been in a state of oblivion, he could not have experienced any belief in this hazard. Assuming the alleged defendant caused the unconsciousness, the plaintiff will, in all probability, succeed in other claims, but assault will not be encompassed.

Immediacy is an equally vital element in tortious assault. This means, if a defendant states to a plaintiff, “In a week, I will send you a letter bomb.” Or “If you don’t repay your loan within six months, your family ought to start planning your funeral”. Horrific as these words might be, they lack the imminence of the act required for any type of assault.


The Disclaimer of Conditional Language

One way to disclaim a tortious assault is to qualify it by language which can be interpreted as negating its menace.

Words such as “if”, “but” or “because” can free the speaker from liability.


  • “If you weren’t my brother, I would punch your guts out for that last remark.”
  • “I would like to pour bleach on your wedding dress for flirting with my fiancee, but I won’t, because we have been friends since kindergarten.”
  • “Even though you have lied in reporting me for cheating on the exam, I won’t throw this baseball at you, only because it could cause big-time damage.”

Savage vs. Tuberville: The Power of Conditional Language

This 1669 case crystallized the law that conditional language frees its speaker from liability for the tort of assault.

Presumably during an altercation, Savage used language which enraged Tuberville to the extent that he grasped the hilt of his sword and said "If it were not assize-time, (visiting circuit Judge) I would not take such language from you".

Savage later claimed Tuberville’s action and words were sufficient to justify his belief in his intent to cause him immediate harm. Therefore, in self-defense, he found it necessary to attack Tuberville, going so far as to put out one of his eyes.

Later, perhaps to prevent himself from being sued, Savage brought a claim against Tuberville for assault. The court found in Tuberville’s favor, stating his disclaimer as to the judge’s presence in the area eradicated any reasonable expectation of danger on Savage’s part.

As a society, we can only wish more people would act as Tuberville had, trusting to the legal system before letting themselves be controlled by an impulse towards violence. Often enough, a cooling off period can quell the first spark before a petty quarrel becomes inflamed into deadly eruption.

© 2017 Colleen Swan


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    • Colleen Swan profile imageAUTHOR

      Colleen Swan 

      3 years ago from County Durham

      Hi Gilbert, Nice to hear from you, glad you found it interesting.

    • rebelogilbert profile image

      Gilbert Arevalo 

      3 years ago from Hacienda Heights, California

      Interesting law lesson, Colleen.

    • Colleen Swan profile imageAUTHOR

      Colleen Swan 

      3 years ago from County Durham

      Thanks Larry; Always nice of you to call in.

    • Larry Rankin profile image

      Larry Rankin 

      3 years ago from Oklahoma

      Very informative.

    • Colleen Swan profile imageAUTHOR

      Colleen Swan 

      3 years ago from County Durham

      Hi Katie, You are so right in terms of cyber cruelty. We can only hope this social media crests at some point and stops its onslaught. Ideally young people will discover the ability to form friendship and intimate bonds in the way we are all used to. Thank you for your insights Colleen

    • kbdressman profile image


      3 years ago from Harlem, New York

      Great summary of assault! It will be interesting to see how these laws are applied to "cyber assaults" in our age of technology. On one hand it's much easier to rattle off something you wouldn't typically say if the person were present and there's a guise of anonymity, but on the other hand, cyber-bullying has had some frightening effects--especially amongst young people. So much for the old "sticks and stones will break my bones, but words will never hurt me" adage!


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