The Action for Assault: A Tort Ahead of Its Time

Restatement (Second) of Torts §29 cmt. b.

This explanation still leaves line-drawing problems in applying the imminence requirement. However, the fact that there will be close cases (again, no pun intended!) is hardly a fatal criticism of the requirement. Close factual issues of this sort will be decided by the jury, under careful instructions as to the meaning of assault. The jurors’ practical intuition about what actions are likely to cause reasonable apprehension will lead to a just decision in most cases. On the other hand, it is clear that fear of a future contact will not support liability for assault. “If you try out for the Olympic team next month, I’m going to bust your nose” is not an assault, since the threat is not of an imminent contact.

Perhaps such threats for the future should be assaults. They are reprehensible, and may be very unsettling to aspiring athletes. Realistically, however, the law can’t protect everyone from everything; it has to pick its targets. Such general, future threats suggest possible, vaguely formed (and hence, changeable) intention, perhaps even mere braggadocio. Consequently, they are likely to be less intimidating than the raised fist of an incensed assailant. In addition, future threats leave the victim time to take other steps to prevent the harm, such as going to the police or avoiding the assailant. Thus, they are less likely to provoke immediate retaliation by the victim.

Sometimes a defendant may place the reasonable person in apprehension of an unwanted contact even though he could not actually batter her. Suppose, for example, that Landy brandishes a realistic-looking toy pistol at Oda. It may reasonably appear to Oda that the pistol is real, and that Landy intends to shoot her. Even though Landy could not actually accomplish a battery with the toy pistol, this is assault, since she had the “apparent present ability” to cause an unwanted contact. Put another way, assault turns on whether the defendant’s act would place a reasonable person in apprehension of an unwanted contact, not whether the aggressor is in fact able to make the threatened contact. Assault protects the victim’s right to be free of meaningful threats of unwanted touchings. Landy’s threat obviously could be mighty disturbing even if she could not actually shoot Oda. (On the other hand, if Oda knows the pistol is a toy, she will not apprehend such a touching, and Landy will not be liable for assault.)

THE “MERE WORDS” PROBLEM

The requirement that the victim anticipate an imminent battery has led many courts to hold that mere words alone cannot constitute an assault, because they do not sufficiently show the defendant’s purpose to immediately batter the victim. For example, a defendant who growls at the victim, “I’m going to wring your neck!” might be held not to commit an assault, but if he extracts a rope from his pocket and proceeds to wind it around his hands, his act provides the necessary evidence of an imminent intent to batter the plaintiff.