When Can You Sue For Assault?

The legal elements of a civil case for assault, plus the financial side to consider before you sue.

Updated By Stacy Barrett, Attorney · UC Law San Francisco

Most people think of "assault" as a crime, but it's also the kind of wrongful act ("tort") that can form the basis of a personal injury lawsuit.

In this article, we'll cover:

  • the similarities and differences between criminal and civil assault cases
  • what you'll need to prove to win an assault lawsuit, and
  • how much your assault case might be worth.

What Is Assault?

The criminal definition of assault varies slightly from state to state. In civil court, an assault is a purposeful act by one person that causes another person to fear immediate harmful or offensive contact.

Contrary to popular belief, assault doesn't always involve physical touching. A civil assault is the threat or fear of harmful physical contact. If physical contact actually happens, it's called a "battery."

A federal circuit judge noted that the torts of assault and battery "go together like ham and eggs," but one may exist without the other. (Balas v. Huntington Ingalls Industries, Inc., 711 F.3d 401 (4th Cir. 2013).)

Learn more about assault and battery as personal injury claims.

Elements of Assault

If you're going to file an assault lawsuit, you (the "plaintiff") will have to show:

  • the person who assaulted you (the "defendant") committed an intentional act
  • the act was meant to cause you to fear immediate harmful or offensive contact, and
  • you actually and reasonably feared immediate contact.

Take the following example: You're waiting at a bus stop after a baseball game decked out in the home team's jersey when you see a stranger quickly walking toward you. The stranger, who is wearing the visiting team's jersey, is carrying a baseball bat in two hands as if to swing it. The stranger curses at you while lunging toward you from a few feet away. You have to dive to avoid getting hit by the bat.

In this example, you've been assaulted. The stranger clearly acted intentionally by walking toward you and swinging the bat. The stranger intended to provoke fear in you by lunging at you and cursing. The stranger's actions did cause you to fear for your safety—you dove to avoid getting hit with the bat. And your fear was reasonable—an average person in your shoes would have reacted the same way.

Now imagine that instead of a menacing stranger, another fan is joyfully rushing toward you while gripping a bat. The fan, wearing the same home team jersey as you, is waving the bat at you while pointing to where a baseball player has signed the bat after hitting a home run.

This fan hasn't assaulted you. The fan waved the bat in excitement, not with the intent to cause you to fear for your safety. If you were afraid for some reason, your fear wasn't reasonable in this context. But if the fan accidentally hit you with the bat while waving it around, you might be able to sue the fan for a negligence-based tort.

Injuries and Damages in Assault Lawsuits

A wrongful act (intentional or otherwise) usually requires "damages" (injury or harm of some kind) to give rise to a lawsuit, and assault cases are no different. In assault cases, damages can include physical or psychological injuries, the cost of medical treatment, lost income, and "pain and suffering." Here's a breakdown of the different kinds of damages that may result from an assault.

Special Damages

Special damages (also called "economic damages") are designed to reimburse you for out-of-pocket expenses related to the assault. Typical special damages include:

  • the cost of your medical treatment (past and future)
  • lost income and diminished earning capacity, and
  • the cost to repair or replace damaged property.

Special damages financially compensate plaintiffs for economic losses caused by the defendant's wrongdoing.

General Damages

General damages (also called "non-economic damages") are designed to compensate plaintiffs for losses that are harder to measure, but often quite significant, like "pain and suffering." Typical general damages include:

Learn more about special and general damages and use our calculator to get a ballpark estimate of the settlement value of your personal injury case.

Punitive Damages

Special and general damages are meant to compensate plaintiffs for their losses. Punitive damages are different. Punitive damages, which are only available under certain circumstances, are meant to punish defendants for particularly bad behavior. Punitive damages are common in civil cases involving egregious misconduct like sexual assault.

How Do I Prove Damages for an Assault Case?

If you're making a legal claim for assault, you'll have to prove all of the elements of assault (see above) and your damages by a "preponderance of the evidence." A preponderance of the evidence means that the judge or jury has to find that your argument is more likely than not to be true.

You're often in the best position to gather the evidence you need to prove your damages after an assault. You can:

  • Call the police. A police report can be invaluable evidence in an assault lawsuit.
  • Get medical treatment. If you're in physical or mental discomfort, see a doctor right after the assault and continue to get the "right" medical treatment. You'll need copies of your medical bills and records to prove your damages.
  • Keep track of your income. If you have to miss work because of the assault, keep track of your hours and lost wages. If you're self-employed, document lost income, customers, and business opportunities.
  • Keep a diary. Write down everything you experience as a result of the assault— headaches, sleepless nights, postponed vacations, nightmares. Your memory will fade quicker than you think and you'll need this evidence to support your claim for general damages.

Learn more about how to preserve evidence for your personal injury claim.

How Much is a Civil Assault Lawsuit Worth?

The value of a civil assault case is based on many factors including:

  • the seriousness of your injuries
  • whether the defendant has a defense to your claim (like self-defense)
  • the nature and extent of your medical treatment
  • your income and how the assault has impacted your work
  • your mental health before and after the accident, and
  • how your daily life has been disrupted by the assault.

Learn more about the "average" personal injury settlement.

How Much Time Do I Have to File an Assault Lawsuit?

If you want to file a lawsuit after an assault, don't delay. Each state has a deadline for filing a civil lawsuit, called the "statute of limitations." Deadlines vary from state to state. Most states allow plaintiffs one to three years to get a personal injury lawsuit filed after an assault.

The consequence for missing the filing deadline is harsh: You'll almost certainly lose your right to sue and recover compensation. Talk to a lawyer about the timeline of a personal injury claim before it's too late.

Learn more about the personal injury statute of limitations in your state.

Should You Sue Someone for Assault?

Even if you've got an excellent case—witnesses who will testify to the assault, medical records to prove your damages—you'll need to consider the financial side of filing an assault lawsuit. The purpose of civil lawsuits is for defendants to compensate plaintiffs for their losses (damages).

But what if the person who assaulted you doesn't have a lot of money or assets? You can't squeeze water from a stone. No matter how much you are awarded in court, it's not worth much if you can't collect. Assaults typically aren't covered by insurance policies, so you'll likely only have the defendant on the financial hook.

Learn more about the challenges of collecting a court judgment.

Talk to a Lawyer

If you're thinking about filing a lawsuit after an assault, talk to a lawyer.

A lawyer can help you decide if, when, and where to file a lawsuit. Learn more about what a personal injury attorney can do for you. You can also connect with a lawyer directly from this page for free.

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