Assault and Battery. We're Not Talking About the Freakin' Energizer Bunny Here

Posted By Michael R. Varble || 26-Mar-2014

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.

Categories: Personal Injury

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