Assault is premised on the “invasion of a person’s right to live without fear of personal harm.” To prevail, the plaintiff must establish: “(1) the defendant acted with intent to cause harmful or offensive contact, or threatened to touch the plaintiff in a harmful or offensive manner; (2) the plaintiff reasonably believed he [or she] was about to be touched in a harmful or offensive manner or it reasonably appeared to the plaintiff that the defendant was about to carry out the threat; (3) the plaintiff did not consent to the defendant’s conduct; (4) the plaintiff was harmed; and (5) the defendant’s conduct was a substantial factor in causing the plaintiff’s harm.”
The defendant must commit an “overt act.” “Words alone can never constitute an assault, though they may contribute to plaintiff’s fear of being subjected to harmful or offensive contact.” Examples of actions constituting assault include: “chasing plaintiff with an unloaded gun; pointing a gun at plaintiff in a threatening manner; doctor menacing a patient who had miscarried and was in recovery room following D&C procedure, trying to force her to look at a vial containing what she believed were the remains of her dead baby; attempting to forcibly eject a patron from a race course; & rousting a couple from their motel room without legal cause.” The defendant must intend “to either inflict a harmful or offensive contact or cause plaintiff to fear such contact.” The defendant’s actions must place the plaintiff “in apprehension of an immediate harmful or offensive contact.” [There is a distinction between assault and battery- “Battery occurs only when actual physical contact takes place. Where such contact is feared, but does not occur, the tort is assault. . . an attempted battery can constitute assault.” The plaintiff must not have consented to the assault and “the defendant’s conduct must be a substantial factor in bringing about the harm to [the] plaintiff.” “The tort is complete when anticipation of harm occurs, [and i]n the absence of actual injury, [the] plaintiff may recover nominal damages. . . However, if [the] defendant causes injury or damage beyond anticipation of contact, [the] plaintiff is entitled to recover for that injury.”
Defenses to assault include consent, self-defense and/or defense of others, and, depending on the facts and in a limited and/or qualified sense, defense of property [“excessive force is impermissible [and] [d]eadly force is generally not justified in defending property.”].
The plaintiff may “recover for all harm proximately caused by [the] defendant’s acts[, including] emotional distress.” The plaintiff can also recover punitive damages if he or she proves by clear and convincing evidence the defendant is acted with oppression, fraud or malice.
“The statute of limitations for assault is two years. . . An assault is complete when the anticipation of harm occurs, and a cause of action accrues upon each individual incident of assault.”
Additional remedies may be realized, depending on the facts and circumstances, by a domestic violence restraining order, civil harassment restraining order, or protections and orders against workplace violence.
[California Practice Guide: Civil Procedure Before Trail Claims & Defenses [citations to primary sources omitted]]
