When Can You Sue For Assault?

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

Most people likely think of "assault" as a crime, but it's also the kind of wrongful act that can form the basis of a personal injury lawsuit. Here's what you need to know.

What is Assault?

In the realm of personal injury law, assault is a purposeful act by one person that creates a fear of imminent harmful or offensive contact in another. In legalese, an assault is known as an "intentional tort" when it is made the subject of a civil case.

Contrary to popular belief, assault does not always involve some type of physical contact, at least not when it comes to civil liability. The simple fear of a harmful or offensive touching is usually enough for an assault to have occurred; if the touching actually occurs, the physical contact is usually considered a "battery" in civil law, although both claims are often made together. Learn more about assault and battery as personal injury claims.

Elements of Assault

If you are going to file an assault lawsuit, there are a few main elements you must be able to prove:

  • an intentional action on the part of the defendant
  • the defendant's intention to cause apprehension of harm, and
  • your resulting reasonable apprehension of immediate harm.

Take the following example: You are waiting at a bus stop after a baseball game and are suddenly approached by a stranger walking toward you at a fast pace. He's 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 of 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 intention to cause fear of harm, you were not apprehensive and, in fact, you consented to touching the bat. You were injured in an unfortunate accident, not an assault, although you could make a case for the jovial fan's negligence.

Injuries and Damages in Assault Lawsuits

A wrongful act (intentional or otherwise) usually requires "damages" (injury or harm of some kind) in order to be actionable, and assault cases are no different. In an assault case, damages can include physical injuries and the cost to treat those injuries, lost income, and other more subjective harm. Here's a breakdown of the different kinds of damages that may result from an assault.

  • Economic damages are designed to reimburse you for any costs and expenses associated with the assault. Common components of economic damages include medical bills (including cost of future care) and lost income.
  • Non-economic damages include compensation for "pain and suffering" and other losses that are difficult to quantify, but often quite significant.
  • Punitive damages for assault are 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 to trigger the possibility of punitive damages.

Should You Sue?

Even if you’ve got an excellent case—witnesses who will testify to the assault, a conviction from the related criminal case, etc. —you’ll need to consider the financial side of filing an assault lawsuit. The purpose of a civil lawsuit is to provide compensation to the victim, to be paid by the perpetrator. If the person who assaulted you doesn’t have significant assets, there may not be much to recover, even if you're "awarded" a high amount in court. That's because no liability insurance policy will cover an intentional act like assault, so only the defendant will be on the financial hook. If you sue a defendant who has little in the way of assets, you'll soon find out that winning money in court isn't the same as collecting it.

You might have other options if someone else's negligence put you in danger, or made the assault easier for the perpetrator to carry out. If you're thinking about filing a lawsuit after an assault incident, it may make sense to discuss the situation with an experienced personal injury attorney.

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