Assault & Battery

Assault and battery are two separate but closely related civil causes of action.  They can also constitute criminal offenses, but this discussion will focus solely on the civil component.  Assault and battery are considered intentional torts, which means that the action associated with the assault or battery must be intended by the party committing the act.  In Colorado, any battery also includes an assault, but an assault doesn’t necessarily include a battery.

Both assault and battery require that a party intends to cause an offensive or harmful physical contact with another, or has intended to place that person in apprehension of an offensive or harmful physical contact.  This is an analysis of the mental state of the person committing the assault or battery, and that person doesn’t need to intend to actually injure the other party.  The intended offensive or harmful contact (or the apprehension of such contact) can be directed at someone other than the party who is injured and an assault or battery claim can still be successful, so long as the party committing the act appreciated the wrongfulness or offensiveness of his or her action.

The other required element of assault and battery differ somewhat.  Battery has only one additional element, and that is that an offensive or harmful contact with another person has resulted from the intended action described above.  Contact in this sense is the physical touching of another person, or the putting in motion of a thing or object that touches another person.  In order for a party to be liable for battery, the physical contact or touching must be offensive or harmful.  In this context, an offensive contact is one that offends another’s sense of dignity and a harmful contact is one that causes physical pain, illness or emotional distress.  Clearly a wide range of contact can be considered offensive or harmful, but what ultimately separates and assault from a battery is that a battery requires actual contact.

Beyond the intended act of the person committing the assault or battery described above, a party claiming assault must prove two other elements.  That party must be placed in apprehension of an imminent contact by the other person’s conduct.  That is to say, that the victim must feel, in light of all the circumstances, that the other person is going to subject them to immediate physical contact.  This is an analysis of the victim’s state of mind created by the conduct of the other party.

The final element of assault is that the contact was or appeared to be, harmful or offensive.  This includes the second element of battery as described above, which is the actual harmful or offensive contact, but also includes situations where no contact is actually made.  This might include pointing a gun at someone, brandishing a knife, pulling a punch at the last second, or even the verbal threatening of that kind of conduct under the right circumstances.  The key is that there must be some act that causes the apprehension of a contact that would be harmful or offensive if carried out.

There are several defenses to assault and battery including self-defense and provocation.  Self-defense can be a complete defense to assault or battery, while provocation may be a defense to some of the damages sought in an assault or battery claim, specifically exemplary or punitive damages (those damages beyond the actual harm or injury caused).  Good Samaritans acting in good faith and rendering emergency assistance may also be exempted from liability for assault or battery.

Both actual and punitive damages can be awarded for assault or battery.  Actual damages may be awarded for fear, anxiety, indignity or disgrace, physical injuries and shock, pain and suffering, medical expenses and loss of earnings.  Beyond those damages, exemplary or punitive damages may be awarded where the party bringing the claim proves beyond a reasonable doubt that harm done was associated with fraud, malice, or willful or wanton conduct.  In most cases the amount of these punitive damages can’t exceed the amount of actual damages.

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