The Action for Assault: A Tort Ahead of Its Time

This principle, that the intent to batter can also suffice for assault, is obviously akin to the transferred intent doctrine illustrated in Chapter 1. See Example 12c from that chapter, in which Romeo tried to batter Thibault by lacing his drink, but Juliet drank it instead. In that example, Romeo was liable for battery, even though he had no intent to cause a harmful or offensive contact to Juliet. He intended to batter someone, and did, though by mischance he ended up battering someone other than the intended victim. Somewhat analogously, Rose is liable to Owens for assault, even though she tried to batter him instead. She had the intent necessary to commit an intentional tort, and she did commit one, though by mischance she accomplished assault rather than battery.

Because assault only protects against fear of a harmful or offensive contact, the plaintiff must prove that she feared the type of contact that would support a battery claim if it actually occurred. Thus, the analysis in Chapter 1 of the meaning of harmful or offensive is also necessary in assault cases. If a contact would not have been harmful or offensive had it been made, the threat of that contact is not an assault either. If Leonard and Spinks often slap each other on the shoulder in jest before sparring, their contacts are not offensive and do not constitute battery. Thus, if Spinks moves to slap Leonard, he does not commit an assault, since Leonard anticipates a touching, but not a harmful or offensive one.

NOTHING TO FEAR BUT APPREHENSION ITSELF

Actually, the word fear, though it is often loosely used in the cases, is not quite accurate. The Restatement definition requires that the defendant cause “apprehension” of a harmful or offensive contact. Apprehension as used here means the perception or anticipation of a blow, rather than fright. Assault protects not only against the fear of an unwelcome contact, but also against the mere expectation or anticipation of one. If Dillard threatens to spit on Baxter’s shoes, Baxter will anticipate, or apprehend, an unwelcome and demeaning contact, which would be a battery if it actually took place. This anticipation is sufficient for an assault claim, even though Baxter is not frightened in the usual sense of that term.

The Restatement definition also requires that the apprehended contact be imminent; that is, the defendant’s act must cause the victim to expect that he is about to be touched. This imminence requirement obviously raises slippery-slope problems. Since the dawn of the socratic method, Torts professors have tortured (no pun intended) students with barely distinguishable assault hypotheticals: Dillard swings an axe at Oda from a foot away, from four feet away, through a window, from across the room, from the end of the street but he’s a faster runner than Oda, and so on. The Restatement suggests that “imminent”

does not mean immediate, in the sense of instantaneous contact, as where the other sees the actor’s fist about to strike his nose. It means rather that there will be no significant delay. It is not necessary that one shall be within striking distance of the other, or that a weapon pointed at the other shall be in a condition for instant discharge. It is enough that one is so close to striking distance that he can reach the other almost at once, or that he can make the weapon ready for discharge in a very short interval of time.