Assault as Personal Injury Claims

Jan 27, 2011   //   by Texas Lawyer   //   Blog  //  No Comments


Most personal injury lawsuits are filed over accidents — like a slip and fall or a car crash. But, in some cases, the action that caused the harm was intentional rather than accidental. In the context of personal injury law, "assault" and "battery" are intentional torts (wrongs) that can form the basis of a lawsuit in civil court. In a typical case, the victim of an assault and/or battery sues the offender, seeking compensation for injuries and other damages stemming from the incident.

What kind of conduct amounts to "assault" in a personal injury case, and what exactly is a "battery"? This article defines the intentional torts of assault and battery, highlights key issues in lawsuits involving the two, and explains the differences between criminal and civil cases involving assault and battery.

What Is Assault?

In a personal injury case, the tort of assault is usually defined as any intentional act that is meant to cause a "reasonable apprehension of imminent and harmful contact" — that is, an action that made someone (the victim) expect that they were about to be hurt or, at least, touched in a harmful way by another (the offender). In most states, that apprehension or fear of imminent harm — as long as it's a reasonable response to the situation — is all that's necessary in order for an act to be considered an assault.

The specific legal requirements vary by state, but a personal injury lawsuit for assault would likely arise in these types of situations:

  • Dan cocks his fist in Pat's face and tells him "I'm going to punch your lights out."
  • Dan points a toy gun at Pat in order to scare him. The fake firearm looks like the real thing, and Pat believes Dan is actually going to shoot him.
  • Pat is crossing the street at a crosswalk. Dan approaches the intersection in his car and accelerates, wanting to make Pat think he's about to get hit. Dan brakes at the last minute, stopping the car just a few feet from Pat.

Keep in mind that, as the above examples demonstrate, no actual contact or touching is necessary in order for the intentional tort of assault to take place. It's the threat that matters. In fact, if contact does occur between the offender and the victim, that's where the intentional tort of "battery" usually comes into play.

What Is Battery?

The specific definition of the intentional tort of "battery" will vary state by state, but typically all that's required is that one person (the offender) make intentional and harmful or offensive contact with another person (the victim).

For a battery to take place, the contact by the offender and the resulting harm to the victim can be:

  • direct and immediate (for example, Dan pushes Pat)
  • indirect and immediate (for example, Dan throws a rock that hits Pat), or
  • indirect and remote (for example, Dan sets a trap that Pat falls into days later).

It’s important to note that the victim does not actually need to be physically harmed in order for a battery to take place under civil law. In most states, all that's required is that the contact be offensive or inappropriate (to a reasonable person) and that the offender meant for it to take place.

The intentional torts of assault and battery often stem from one event, but that isn't always the case. It's possible for an assault to occur without battery — think of Dan raising his fist in a threatening manner, but no actual punch being thrown. And a battery can also take place without an assault. For example, if Dan pushes Pat from behind, that’s almost certainly a battery under personal injury law. But, if Pat never saw Dan coming and never felt any apprehension beforehand, an intentional tort of assault probably did not occur.

Damages in Assault and Battery Tort Cases

When it comes to injuries, civil cases involving assault and battery can run the gamut of seriousness. Remember, no actual physical injury is required in most states, so lawsuits for assault and battery can vary widely in terms of damage awards. In cases where there was no harm done (or very little), filing a lawsuit may not always be worth it in the long run, even though an assault or battery may have technically taken place.

On the other hand, when an assault and battery incident requires hospitalization and extensive medical attention, a personal injury lawsuit may be the best way for the victim to get reimbursement for medical bills and compensation for things like pain and suffering.

Defenses in Assault and Battery Tort Cases

A personal injury lawsuit won't be successful if the person being accused of assault or battery has a valid legal excuse for their conduct. Here is a look at some of the most common defenses to a personal injury lawsuit where assault or battery (or both) is alleged.

Consent. A defendant might say that the victim agreed to the possibility of being hurt. This defense arises most often in intentional tort lawsuits in cases involving contact sports, paintball-style games, and similar activities. A plaintiff who files a lawsuit in these cases may have a hard time winning if he or she consented to certain physical contact — getting hit in a game of football, for example — even if the contact ended up causing harm.

Privilege. A police officer who used force while arresting someone might try to assert the defense of privilege. For example, if a police officer injured someone while making an arrest, a lawsuit for assault and battery probably won't be successful as long as the officer used a reasonable and appropriate amount of physical force while making the arrest.

Self-defense or defense of others. If someone accused of assault and/or battery was responding appropriately to a threat of harm, then a lawsuit for assault and/or battery probably won't succeed. The key here is whether the person's response was a reasonable reaction to the situation. If Dan swings a fist at Pat in an attempt to hit him, Pat can probably grab Dan's arm and try to subdue him without being liable for the intentional tort of battery. But, in that situation, Pat can't take out a gun and shoot Dan and then claim self defense, because that wouldn't be considered a reasonable response under the circumstances.

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