The Victim's Right To Civil Damages for Assault

The criminal case for assault punishes the perpetrator, but a separate case can be made by the victim for civil damages.

By , Attorney · University of Michigan Law School

A civil assault occurs when one person (the defendant) intentionally puts another person (the plaintiff) in fear or apprehension of physical contact. This is distinct from a civil battery claim, which involves physical contact and (usually) injury. A plaintiff who proves a defendant is liable for assault in a civil case is entitled to the same categories of damages that are available to other victims of intentional torts: nominal, compensatory and punitive damages. In this article, we'll explain each category of damages and how they apply to a civil lawsuit over assault.

Nominal Damages in an Assault Case

Nominal damages are a very small sum given to a plaintiff when assault is proven, but there was no actual harm to the plaintiff—or no evidence of harm. Because apprehension of harm is an inherent aspect of assault and apprehension itself presumes some kind of harm, a winning plaintiff in an assault case will typically receive more than nominal damages.

One exception might be where a plaintiff testifies that she thought she was about to be hit, but says that it "didn't scare her," or makes some other disclaimer of emotional harm.

Although a nominal damages award may be small, it fulfills an important requirement: some kind of initial damages must be awarded before a defendant can be found liable for punitive damages (which we'll discuss later on in this article).

Compensatory Damages for Assault

Compensatory damages are the category of injury damages that is designed to "make the plaintiff whole," i.e. monetarily compensate the plaintiff for the harm and expenses suffered as a result of the assault. There are two sub-categories of compensatory damages: general damages and special damages.

General damages compensate the plaintiff for the kind of harm that can be expected from the wrong that was committed by the defendant. General damages for an assault will typically include emotional pain and suffering and other mental distress. The plaintiff does not need to make a special request for general damages, and the amount awarded is up to the jury.

Special damages compensate the plaintiff for more specific expenses caused by the assault. For example, after the assault the plaintiff might be unable to do his job and might require on-going psychiatric care. The special damages in that case would include any amount the plaintiff had already paid out for psychiatric care as well as a reasonable amount for any future care that might be required. In addition, since he is no longer able to work as a result of the assault, he can be awarded past lost wages and loss of future wages.

Special damages must be specifically requested by the plaintiff and proved in some manner, frequently with the aid of an expert witness. Proof of certain kinds of special damages are relatively straightforward, such as simply presenting a verified doctor's bill. Other special damages are very difficult to prove definitively, such as the cost of future medical care or the life-time cost to the plaintiff's as result of her impaired ability to work in a specialized field.

Complicated and uncertain special damages requiring elaborate proof (frequently leading to a "battle of experts") are generally not at issue in a typical assault case. See Special vs. General Damages for more detail.

Punitive Damages in a Civil Assault Case

Punitive or exemplary damages are only available when a defendant intentionally and maliciously causes harm. The purpose of punitive damages is to deter similar conduct by making an example of the defendant, and to punish the defendant for his or her actions.

It is up to the jury to determine whether punitive damages should be awarded -- and if so, in what amount. The jury will consider the nature of the defendant's act, the harm that the defendant caused or intended to cause, and the amount that would be necessary to punish the defendant relative to his or her wealth. Punitive damages are almost always awarded for particularly egregious acts, like sexual assault or sexual abuse of a child.

Nominal or compensatory damages are a prerequisite to punitive damages. Because an assault necessarily involves intentional conduct, but does not necessarily involve physical contact, punitive damages may be the only large award a plaintiff recovers from a liable defendant.

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