Personal Harm Without Physical Impact: Assault and Intentional Infliction of Emotional Distress

Question 1

What are the elements of assault as stated in the restatement?

Answer 1

“An actor is subject to liability for assault if (a) he acts intending to cause a harmful or offensive contact with the person of another or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension.”

Question 2

How many sides does assault have and what are they?

Answer 2

Two: Bad conduct by the injurer is one side (intent to cause harmful or offensive contact or apprehension
thereof) and a bad experience suffered by the victim (the imminent apprehension intended by the injurer).

Question 3

Does assault require physical harm?

Answer 3

Assault does not require physical harm (nor could it).

Question 4

What does assault law protect people against?

Answer 4

Assault law protects people against fear of harmful or offensive contact.

Question 5

What are the similarities between assault and battery?

Answer 5

A battery is a “swing and a hit,” whereas an assault is a “swing and a miss.”

Question 6

How are battery and assault different?

Answer 6

Battery and assault are different in that battery involves a hit whereas assault involves a miss and similar in that both involve a swing.

Question 7

What is the imminence element of assault?

Answer 7

Immediately menacing behavior amounts to assault even if the threat of violence is conditional and no violence is attempted because plaintiff gives in to the threat. There is, then, no “attempted battery” but there is still an assault.

Question 8

What elements of assault are introduced in Cullison, Ingram, and Brower?

Answer 8

These cases show that (a) the fear must be reasonable, (b) the threatened harm must be imminent, and (c) there
must be an “overt” act.

Question 9

Can there be assault without apprehension?

Answer 9

There is no assault without apprehension: without the subjective bad experience of being afraid of physical harm on the part of the plaintiff.

Question 10

Does there have to be an assault to have a battery claim?

Answer 10

There can be a battery without an assault because
the interest protected by battery (freedom from harmful or offensive contact) can be invaded even while the interest protected by assault (freedom from fear of harmful contact) is not.

If someone punches you in the back of the head without you knowing they’re going to, there’s no assault, but they still hit you.

Question 11

What is a miscarried assault and can it be a battery?

Answer 11

A miscarried assault (an intended near miss that happens
to hit) can be a battery.

Question 12

Must there be physical injury to have personal injury?

Answer 12

No. There must be “severe emotional distress.”

Question 13

What is the modern rule for intentional infliction of emotional distress (IIED) as stated in the restatement?

Answer 13

The modern rule is stated in Section 46(1) of the Second Restatement of Torts: “One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.”

Simply stated, there are three elements: (1) intentional or reckless infliction of (2) severe emotional distress by (3) outrageous conduct. Each must be proven by a preponderance of the evidence.

Question 14

Is insisting on one’s legal rights outrageous conduct?

Answer 14

No. (Davis)

Question 15

Can insistence on non-existent rights or defenses be considered outrageous conduct?

Answer 15

Yes. (Davis)

Question 16

Is exercising a personal freedom, such as withdrawal from a planned marriage, considered outrageous conduct?

Answer 16

No. (Jackson)

Question 17

What makes conduct outrageous in the scope of the hassles of everyday life?

Answer 17

The plaintiff must allege conduct that is considerably more egregious than that experienced in the rough and tumble
of everyday life. (Whelan)

Question 18

Is a consensual relationship between a pastoral counselor and a married patient outrageous conduct?

Answer 18

No. (Schieffer)

Question 19

Can exercising religious freedoms be considered outrageous?

Answer 19

No because it is protected by the free exercise clause and
therefore privileged. (Paul)

Question 20

What is outrageous conduct as defined by the restatement?

Answer 20

“Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse [their] resentment against the actor, and lead [them] to exclaim, ‘Outrageous!’” The test emphasizes both the extremity of the bad actor’s misbehavior and the intensity of the average observer’s reaction.

Question 21

May a defendant be held liable for assault for saying that the defendant would commit battery against the plaintiff under different circumstances? (Quimbee)

Answer 21

No. A defendant may not be held liable for assault for stating that the defendant would commit battery against the plaintiff under different circumstances. That kind of threat is not a conditional assault, in which a defendant forces a plaintiff to choose between a battery and some other unlawful consequence.

Question 22

Can a conditional threat of violence constitute an assault? (Quimbee)

Answer 22

Yes. A conditional threat of violence can constitute an assault. An assault requires that the defendant intentionally place the plaintiff in reasonable apprehension of imminent harmful or offensive contact. Any threat of imminent violence that causes a reasonable apprehension of harm can be an assault even if it is conditional or offers the plaintiff a means of escape.

Question 23

May a defendant be held liable for assault if the plaintiff was unafraid? (Quimbee)

Answer 23

Yes. A defendant may be held liable for assault even if the plaintiff was unafraid. The elements of assault require only that the plaintiff had a reasonable apprehension of an imminent battery. An apprehension is merely an expectation. That means that a defendant may be held liable for assault if the plaintiff had an expectation that a battery was imminent even if he or she was not afraid.

Question 24

What does the term imminent mean in the context of a plaintiff’s apprehension of an imminent battery? (Quimbee)

Answer 24

In the context of a plaintiff’s fear of an imminent battery, the term imminent means occurring without significant delay. Imminent does not mean at any time in the future. A battery that may occur at some indefinite point in the future is not imminent.

Question 25

To commit the tort of assault, must an actor have the actual, present ability to fulfill a threat of harm to the victim? (Quimbee)

Answer 25

No. To commit the tort of assault, an actor does not need to have the actual, present ability to fulfill a threat of harm to the victim. As long as the threat causes the victim to experience a reasonable apprehension of imminent harmful or offensive contact, the actor’s ability to actually carry out the apparent threat is irrelevant.

Question 26

May a defendant who did not intend to batter a plaintiff be held liable for assault? (Quimbee)

Answer 26

Yes. A defendant who did not intend to batter a plaintiff may be held liable for assault if the plaintiff had reasonable cause to believe that the defendant had the intent to batter plaintiff. This is true even if the defendant never intended to batter the plaintiff.

Question 27

What is reasonable apprehension of an imminent battery? (Quimbee)

Answer 27

Reasonable apprehension of an imminent battery occurs if the plaintiff actually and reasonably believes that the defendant (1) has the ability to carry out the anticipated battery and (2) will in fact do so. A plaintiff’s apprehension is reasonable if a reasonable person in the plaintiff’s position would expect a battery to be imminent. However, that apprehension is merely expectation. There is no requirement that the plaintiff be in fear.

Question 28

Are words alone sufficient to constitute an assault? (Quimbee)

Answer 28

No. Generally speaking, words alone are not sufficient to constitute an assault. The defendant must do some act that creates a reasonable apprehension in the plaintiff that a battery is imminent. A defendant’s menacing words and other surrounding circumstances may be considered, along with the defendant’s physical act, in determining the reasonableness of the plaintiff’s apprehension or expectation of a battery.