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The Action for Assault: A Tort Ahead of Its Time

(1) An actor is subject to liability to another for assault if

(a) 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

(b) the other is thereby put in such imminent apprehension.

Restatement (Second) of Torts §21. Under this definition, the defendant must (1) act with intent (2) to place the victim in apprehension of a harmful or offensive contact or to make such a contact, and (3) the victim must reasonably be placed in apprehension of such a contact. These requirements are discussed in detail below.


Assault, like battery, requires intentional conduct, and in the same restrictive sense. The defendant must act with the purpose to cause apprehension of a contact or substantial certainty that the apprehension will result. Restatement (Second) of Torts §8A. Thus, as in a battery case, the defendant may not avoid liability by claiming that he did not mean to place the plaintiff in fear of an unwanted touching, if he knew to a substantial certainty that fear of a touching would result. Suppose that Owens throws a shot put across the infield while Jackson is standing in the landing area. Owens cannot avoid liability for assault by arguing that he was just warming up for the decathlon. If Jackson was looking at him, Owens must have known that Jackson would reasonably fear being hit. Thus his act is intentional under the Restatement definition, even though he did not do it for the purpose of placing Jackson in fear.

On the other hand, many cases in which plaintiffs are placed in fear of a touching are not intentional as that term is used in intentional tort law. If Jackson loses control of her car on Main Street, and careens over the curb in Owens’s direction, Owens will doubtless be placed in fear of being run down. However, Jackson has not acted with a purpose to frighten Owens, or with substantial certainty that the act will frighten him. Jackson may be liable to Owens for negligence, but she has not assaulted him.

Even if Jackson acts intentionally in the sense that she deliberately swerves toward the curb, she lacks intent in the intentional tort sense if she does not desire or know to a substantial certainty that she will hit Owens (or place him in apprehension that she will hit him). For example, if Jackson suddenly realizes that her brakes have failed, and steers for the curb to stop the car, her act is intentional in the sense that it was a voluntary, deliberate act, but it would not be an assault if she did not know that Owens was there and would be placed in fear of being hit.

The Restatement definition also provides that one who attempts to batter the plaintiff but misses is liable for assault if the plaintiff is placed in apprehension of a blow. Restatement (Second) of Torts §21(1). Suppose, for example, that Rose, infuriated by Owens’s bragging that he won more Olympic medals than she did, throws a shot put at him but misses. Even though Rose tried to commit a battery rather than an assault, she is liable to Owens for assault if he sees the shot put coming and is placed in fear of being hit. (On the other hand, if Owens is looking the other way and doesn’t know of her act, he is not placed in fear of a harmful touching and has no tort claim for assault.)

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