Torts: Intentional Torts: Assault

Assault – D must put P in apprehension + of an immediate battery
  • D must put P in apprehension
    • Apprehension: means knowledge, awareness, and understanding.
      • EX: David and Goliath. On bar, the little guy will threaten the big guy and say, “I’m gonna hit you.” One of the choices on MBE will be, “he’s not in apprehension.” The test is whether he knows he will be touched; not whether he’s afraid.
    • Test: from P’s perspective. If P knows that no touching can happen, then P cannot recover for assault. If P is not sure either way, then P is entitled to recover. If it’s his own gun and he knows its unloaded, it couldn’t be an assault.
    • Of an immediate battery
      • Conduct required: Mere words lack immediacy. Words alone do not constitute an assault. Threatening words not enough, must be accompanying conduct. (weapon, baseball bat, shaking fist)
      • Even with threatening conduct, look at accompanying words. Sometimes words can negate the immediacy. P can lose.
        • EX: Subjunctive words: “If you weren’t my best friend I would…” Not assault.
        • EX: It’s 9am. I say, “I will beat you at 3pm.” There are words that suggest action will occur 6 hours later. No immediacy.