3) ASSAULT
Elements of Assault
1. ACT
2. INTENTION: Intending to cause another the apprehension of imminent harmful or offensive contact
3. CAUSATION: The act reasonably causes this apprehension in another
a) Assault: Protects P’s interest freedom from apprehension of contact
i) RS(2) 21. Assault.
An actor is subject to liability to another for assault if:
(1) 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
(2) the other is thereby put in such imminent apprehension.
ii) 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.
iii) RS(2) 24. What Constitutes Apprehension
(1) In order that the other may be put in the apprehension necessary to make the actor liable for an assault, the other must believe that the act may result in imminent contact unless prevented from so resulting by the other's self-defensive action or by his flight or by the intervention of some outside force.
iv) Overview
(1) Assault consists of an act intended to cause either harmful or offensive contact with another person or apprehension of such contact, and that creates in that other person’s mind a reasonable apprehension of an imminent battery.
v) Intent
(1) P has the necessary intent if he intends to frighten the plaintiff; P does not need to be capable of carrying out the threat or intend any to cause P any harm. (AMBITUIY)
(a) Langford v. Shu: D aided and abetted her two young sons in playing a practical joke against neighbor by releasing an “African Mongoose” (fox tail) near the neighbor as she attempted to leave D’s home. HOLDING: D guilty of assault. If an act is done with the intention of bringing about an apprehension of harmful or offensive conduct on the part of another person, it is immaterial that the actor is not inspired b any personal hostility or the desire to injure the other. NO HOSTILITY TOWARDS P IS REQUIRED.
vi) Standard for apprehension = reasonable person
(1) Koffman v. Garnett: Koffman, in his first year of organized football, was placed on the defensive team under the defensive coach, Garnett. To demonstrate the proper tackling technique, Garnett, without warning, thrust himself into Koffman, picking him up and throwing him to the ground, thereby breaking Koffman’s arm. Koffman sued Garnett for assault. HOLDING: No assault because any inference of apprehension is negated by the fact that Koffman had no prior warning of Garnet’s actions. Any apprehension that occurred before Koffman hit the ground occurred after Garnett’s battery and does not amount to assault.
(2) Exception
(a) If P is particularly sensitive, but a reasonable person would have no apprehension of imminent contact, NO assault. Of course, if D has reason to know of P’s particular sensitivity, he may be liable even if action would not normally be frightening.
vii) Imminence
(1) Threat of future harm does not constitute assault (may constitute IIED).
(2) To differentiate, courts usually require the threat of harm to be w/in a short period for assault.
(3) D must appear to P to have the present ability to commit the threatened act.
(a) Brooker v. Silverthorne: D threatened P, a telephone operator, over the phone for being unable to connect him. D not liable: Court finds that words do not amount to assault, and there was no threat that caused P to believe that bodily harm was imminent (D was not there, and the words were said in the heat of passion.)
viii) Words Alone rule
(1) Generally, words alone are not enough to constitute assault. They must be accompanied by some overt act, however small, to add to the threatening character of the words. Some cases & Second Restatement suggest that words & surrounding context can constitute assault when they place reasonable apprehension in P of imminent harm / offensive contact. Ex: If A, a known gangster, threatens B over the phone; B comes around the corner & sees A, who does nothing but says, “your time has come”, A has committed assault