In today's blog post, I discuss what an assault and battery, the material
elements, where these cases arise, and what you as a member of the public
need to think about if you have been injured in these circumstances. If
you have been injured in a fight, you have the right to seek compensation
for your injuries.
So what is an assault and what is a battery ? Well, an assault is defined
as the intentional placing of another person in fear of imminent harmful
or offensive contact. The defendant must have the real or apparent ability
to bring about the harmful or offensive bodily contact. There must be
some menacing act or gesture that causes the plaintiff to believe that
the harmful or offensive bodily contact is about to occur. Mere words,
without some action, are not enough to sustain a claim for assault. Notice
that this definition does not include the actual touching of the plaintiff
by the defendant.
A battery is defined as the intentional touching of another person without
that person's consent that is considered offensive and that causes
damages. Intent is a state of mind with which the act is done. The intent
that is required for a battery is the intent to cause bodily contact that
the other person would find offensive. Often, we attorney plead that an
assault and battery is also a negligent act and we ask that the Court
submit both issues to the jury.
What am I talking about ? Lets say you were involved in a bar fight - which,
by the way, is probably the most common situation giving rise to an assault
and battery claim - and, unfortunately, you are injured in the fight.
You pick up the phone after finding us on the Internet and come in for
a free consultation and retain us to sue the other person in the fight
and the bar. There may be dram shop issues involving the bar, and premises
liability issues involving the bar which I will discuss in another blog
in great detail. In summary, the bar has a responsibility not to serve
alcohol to persons that are visibly intoxicated and they also have to
provide security for its patrons, particularly if the establishment has
prior knowledge of fights occurring in the bar. That being said, you end
up in a fight with someone else in the bar and you end up on the losing
end of the fight with a broken jaw. I would prepare a summons and complaint
that alleges that the other person involved in the fight not only committed
an assault and battery against you, I would also claim that that same
person negligently committed an assault and battery against you as well.
Why, you may ask. There are different standards of proof involved in the
two separate theories. Intentional torts require you, as a plaintiff,
demonstrate that the defendant intended bodily contact that was offensive
and that injuries resulted from it. Under the negligence theory, you don't
have to prove that the defendant intended to produce the contact so your
job - which is actually my job - is easier because you don't have
to prove intent. In addition, insurance carriers do not indemnify defendants
in cases where there are intentional torts and my job, as your attorney,
is to recover compensation for you if you are injured so the negligence
theory is you better bet to obtain a recovery.
What should you, as a potential plaintiff, take from all of this ? First,
if you are injured in a fight, you should contact us to schedule a free
consultation. Second, you need to get the appropriate medical treatment.
Third, you can recover for injuries you may have suffered in a fight and
we will do everything in our ability to get the compensation you deserve.
As always, I hope you don't need to use us for being injured, but
I know it is going to happen to people. If it happens to you or someone
you love, give us a call at 1.888.900.6204 and schedule a free consultation.
Put us to work and we will fight for you.