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The Action for Assault: A Tort Ahead of Its Time

INTRODUCTION

Historically, tort law has been reluctant to protect mental tranquility alone. For example, courts have not allowed recovery for insult, or for disturbing the plaintiff’s peace of mind through distasteful behavior or voicing unpopular opinions. True, some courts have recently begun to redress limited forms of psychic injury, such as infliction of emotional distress and invasion of privacy. But these have gained currency only in the last few decades. If the duration of the common law were an hour, this would represent only the past few minutes.

Assault, however, is an exception to this general principle. The action for assault, which has been with us virtually since the inception of the common law, does allow recovery for interference with peace of mind, even where there is no physical invasion of the victim’s person or property. Unlike battery, which requires a tangible, physical invasion, assault protects one form of mental tranquility, the right to be free from fear or apprehension of unwanted contact. In this sense, assault has truly been a tort ahead of its time.

One of the most important objects to be attained by the enactment of laws and the institutions of civilized society is, each of us shall feel secure against unlawful assaults. Without such security society loses most of its value. Peace and order and domestic happiness, inexpressibly more precious than mere forms of government, cannot be enjoyed without the sense of perfect security. We have a right to live in society without being put in fear of personal harm.

Beach v. Hancock, 27 N.H. 223, 229 (1853). Assault, like battery, protects this right of personal security by authorizing damages for threatened invasion of the person. However, assault is definitely not a general remedy for interference with mental tranquility: It only protects against one narrow type of mental distress, the apprehension of immediate physical aggression.

THE RESTATEMENT DEFINITION

Because assault is an ancient remedy applied in many jurisdictions, the cases vary somewhat in describing its elements. In Cucinotti v. Ortmann, 159 A.2d 216, 217 (Pa. 1960), for example, the court held that “an assault may be described as an act intended to put another person in reasonable apprehension of an immediate battery, and which succeeds in causing an apprehension of such battery.” Compare Western Union Tel. Co. v. Hill, 150 So. 709, 710 (Ala. App. 1933): “To constitute an assault there must be an intentional, unlawful, offer to touch the person of another in a rude or angry manner under such circumstances as to create in the mind of the party alleging the assault a well-founded fear of an imminent battery, coupled with the apparent present ability to effectuate the attempt….” Despite such differences, the essence of these definitions is quite similar. The elements of the tort are distilled in the Second Restatement definition of assault: