What must a plaintiff prove to recover for an assault or battery?
The terms assault and battery are often erroneously used interchangeably. However, they are not the same things. An assault can be defined as the threat to use unlawful force to inflict bodily injury upon another. The threat, which must be believed to be imminent, must cause reasonable apprehension in the plaintiff. Therefore, where the defendant has threatened some use of force, creating an apprehension in the plaintiff, an assault has occurred. The focus, for the purpose of determining whether a particular act is an assault, must be upon the reasonableness of the plaintiff’s reaction.
If the defendant threatens to use force against the plaintiff, but clearly states that the use of force will not be imminent, and will instead occur at some point in the future, then the plaintiff is unlikely to prevail on a claim of assault. If the threat is imminent, and the defendant appears capable and intent on carrying it out, the plaintiff will likely succeed in proving an assault occurred. For example, a plaintiff may have difficulty proving an assault in cases where an individual such as a former spouse threatens him or her over the phone and thus is not present and capable of immediately carrying out the threat.
Battery is the intentional and unpermitted contact with another. A battery, for practical purposes, is the end product of an assault. A plaintiff in a battery claim does not need to prove an actual injury, as long as the plaintiff proves unlawful and unpermitted contact with his or her person or property. For example, plaintiffs have successfully proven a battery where the defendant grabbed onto the plaintiff’s coat. In addition, it is not necessary for the contact to be with an object in the possession of the plaintiff or the plaintiff’s body. An unpermitted contact with property of the plaintiff, located within the plaintiff’s proximity, may also constitute a battery.