When Can You Sue For Assault?

Get an overview of the legal elements of an assault lawsuit, as well the financial issues to consider before you sue.

While most people think of "assault" as a crime, it is an act that can also form the basis for a personal injury lawsuit. In legalese, an assault is known as an "intentional tort" when it is made the subject of a civil case for damages. Read on to learn more about filing a civil lawsuit over an assault.

What is Assault?

In the realm of tort law, assault is an intentional act by one person that creates a fear of imminent harmful or offensive contact in another.

Contrary to popular belief, assault does not always involve some type of physical contact, at least not when it comes to tort liability. The simple fear of a harmful or offensive touching is an assault; if the touching actual occurs, the physical contact is legally defined as battery in civil law, although both claims are usually made together.

Elements of Assault

If you are going to file an assault lawsuit, knowing the elements of assault is essential. There are two main elements you must be able to prove to recover damages in an assault lawsuit:

  • an intentional action on the part of the defendant, meant to cause apprehension of harm
  • which actually causes reasonable apprehension of immediate harm on the part of the plaintiff.

Take the following example: You are waiting at a bus stop after a baseball game and are suddenly approached by a stranger. That stranger is walking toward you at a fast pace, is carrying a baseball bat in two hands as if to swing, and begins quickening his pace about five feet from you. The stranger lunges at you with the bat, and you dive out the way sustaining injuries.

In that example, the assailant clearly acted intentionally, as evidenced by the approach and swing of the bat, and intent to provoke fear is demonstrated in these threatening actions. Those actions did cause immediate apprehension on your part, which was reasonable, because you were in fear of being hit with a baseball bat. You would be well within your rights to file a lawsuit for assault.

Now imagine that instead of a menacing stranger, another fan was jovially rushing toward you waving the bat above his head, excited that a player gave him the bat. In showing you the bat, he accidentally knocked you in the head with it, causing a small cut. In this instance, no assault occurred. There was no intentional act on his part, you were not apprehensive and, in fact, you consented to touching the bat. You weren’t an assault victim, but the victim of an unfortunate accident. An assault lawsuit would not stand, although a negligence claim might.

Injuries and Damages for Assault

In general, any tort (intentional or otherwise) involves damages, and assault cases are no different. In an assault case, damages can be physical injuries, psychological damages, or both. In some instances, assault can even result in damage to property. If you sustain a personal injury due to assault, you may be entitled to recover both economic and non-economic damages. In some jurisdictions, you may even be entitled to punitive damages depending on the circumstances of the assault.

  • Economic damages are designed to reimburse you for any costs and expenses associated with the assault. Common economic damages are medical bills, property repair or replacement, and the cost of continuing care.
  • Non-economic damages are damages awarded for pain and suffering, and are harder to quantify.
  • Punitive damages for assault are damages designed solely to punish the assailant, and are only available in certain jurisdictions and under certain circumstances. As a general rule, an assault must be particularly outrageous or egregious (like a sexual assault or sexual abuse of a child) to trigger the possibility of punitive damages.

See The Victim's Right To Civil Damages for Assault for a further analysis of the types of compensation available.

Should You Sue?

Even if you’ve got an excellent case – witnesses that will testify to the assault, a conviction from the related criminal case, etc. -- you’ll need to consider the financial issues in filing an assault lawsuit. The purpose of a civil lawsuit is to provide compensation to the victim, from the perpetrator. If the person that assaulted you doesn’t have significant assets or wealth, there’s nothing to get from him/her. A liability insurance policy might be available, but these types of policies almost always exclude intentional acts of the insured, so that’s rarely an option in an intentional tort case.

You might be able to sue another party that does have the economic means and played a role in your case. For example, if you were assaulted in a poorly lit store parking lot, in an area of town notorious for crime, the store or property owner may be liable for negligence – based on a lack of security and lighting. You’d need an attorney to investigate the facts of your particular case.

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