Assault and Battery as Personal Injury Claims

You might be able to file a lawsuit against the person who assaulted you, but collecting any money you're awarded could be a challenge.

By , J.D. University of San Francisco School of Law
Updated 8/19/2022

Most personal injury claims are filed over accidents—like a slip and fall or a car crash. But sometimes the action that caused the harm was intentional rather than accidental.

In the context of personal injury law, "assault" and "battery" are intentional torts 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 negative effects ("damages" in the language of the law) resulting from the incident.

But what kind of conduct amounts to "assault," and what exactly is a "battery"? This article defines these intentional torts, explains the differences between criminal and civil cases involving assault and battery, and offers some words of caution before you decide to sue.

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 potentially harmful way by the offender.

In most states, the victim's 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 under personal injury law.

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 threatens to punch him.
  • 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. Of course, if Dan points a real gun at Pat, that's not just assault under civil law; Dan might also be charged with brandishing a firearm or a similar crime.
  • 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.

As these examples show, 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 or offense to the victim can be:

  • direct and immediate (for example, Dan punches Pat during a fight)
  • indirect and immediate (for example, Dan throws a rock that hits Pat, or Dan spits on Pat during a road rage incident), 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 the contact to take place.

So, while Dan's spitting on Pat (as in the above example) probably won't result in physical injury, it's certainly offensive, and if the spit finds its target, that's enough contact to equal a battery.

The intentional torts of assault and battery often stem from one event, but that isn't always the case. An assault can 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.

What Should I Do After Being Assaulted?

After any kind of incident that might amount to assault and/or battery, it's important to protect yourself and your legal rights.

Get Medical Attention

Once you're in a threat-free, safe location, your first concern is your well-being. That means getting proper medical treatment for any injuries that require attention. At the slightest hint of pain or discomfort, get to the emergency room, or at least schedule an appointment with your doctor to get yourself checked out.

Your health is obviously paramount, but seeking prompt medical care for any injuries is also important if you end up taking legal action against the person who assaulted you. Learn more about the importance of getting medical attention for your injuries.

Gather Evidence

Take pictures of any physical injuries you have, torn clothing, damaged property, and anything else that might help establish the nature and severity of the assault.

Make sure you obtain any video of the incident (taken by a bystander on their phone, for example), and since there might be surveillance footage of the incident (especially if it happened in a commercial district) make note of who might own the property where the assault occurred, as well as nearby businesses and buildings. Learn more about preserving evidence for your personal injury claim.

Talk to Witnesses

Try to get the names and contact information of anyone who might have seen any aspect of the assault/battery incident, from what led up to it, to the attack itself, to the aftermath.

Contact Law Enforcement

If the incident was serious enough that you'd like to get law enforcement involved, report the assault to your local law enforcement agency, and cooperate with any resulting investigation. Hand over any of the evidence you collected (as noted above), and see if your witnesses would be willing to talk to the police.

But remember that other people (members of law enforcement and the local district attorney) will decide whether or not the matter goes forward on the criminal side. This means it's not up to you whether the person who assaulted you gets arrested or ends up facing criminal charges over the incident. For the basics on the criminal side of things, learn how criminal cases get started.

Civil Assault and Battery Lawsuits

A civil lawsuit over an assault and/or battery is filed in court by the victim (as the "plaintiff") against the offender (the "defendant"). While the nature of what the plaintiff needs to prove (the elements of assault and battery as defined above) are unique to these kinds of cases, from a procedural perspective an assault/battery lawsuit usually follows the same course as any other personal injury lawsuit.

Civil Lawsuits Versus Criminal Cases

As touched on above, assault and battery are also crimes that can be prosecuted by the government. The definition of criminal assault and battery varies from state to state, but these crimes always involve acts of physical violence committed by one person against another, usually with varying degrees of seriousness. Learn more about the crimes of assault, battery, and aggravated assault.

So, a single act (Dan punching Pat in the course of an argument, for example) can be the subject of both a criminal prosecution (filed against Dan by a local district attorney on behalf of the government) and a personal injury lawsuit for damages (filed by Pat against Dan in civil court).

Pat can win a civil court judgment against Dan, ordering Dan to pay Pat a set amount of money as compensation for the harm Dan inflicted (more details on damages below). And, depending on the criminal charges he's facing and what Dan is convicted of (after plea bargain or trial) Dan could face a variety of punishments, including:

  • incarceration in jail or prison
  • fines
  • probation, and
  • court-ordered counseling or other forms of intervention.

Learn more about civil versus criminal assault and battery.

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 damages. In cases where there was no harm done (or very little), filing a lawsuit might 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 causes substantial harm, a personal injury lawsuit against the offender may be worth it, especially if your injuries require hospitalization and extensive medical attention, and you've experienced emotional distress and other kinds of subjective, non-physical harm.

The different categories of damages that might arise in the wake of an assault and battery include:

  • the victim's medical bills and the cost of future medical care necessary to treat the assault and battery injuries
  • time missed at work, missed business opportunities, and other kinds of lost income/financial damages resulting from the injuries and the victim's inability to make a living, and
  • physical and mental pain and suffering resulting from the injuries, necessary medical treatment, and the impact of the incident/injuries on the victim's life.

Proving You Sustained Assault or Battery Damages

This aspect of a civil lawsuit over assault and battery is usually dictated by:

  • the nature and extent of your injuries
  • your prompt seeking of medical treatment, and
  • medical records showing that your injuries are consistent with your version of how the incident happened.

Proof of your damages—specifically, the impact that the assault/battery has had on your life—might be further bolstered by a daily written account of how your injuries are affecting you, how you're processing the incident, and similar effects. Learn more about taking notes about your injuries.

But this issue also touches on something we discussed above: While you might have been the victim of a clear case of assault or battery, if you weren't really hurt as a result of the incident (you received no medical treatment, for example), filing a lawsuit probably isn't worth the time and hassle.

How Much Time Do I Have to File an Assault and Battery Lawsuit?

With any kind of civil lawsuit, a law called a "statute of limitations" sets a time limit on the plaintiff's right to file the case in court, and seek compensation for their losses. If the plaintiff misses the filing deadline, they've likely lost the ability to sue.

For civil lawsuits over an assault and battery, the statute of limitations time period varies depending on the state. For example, it's one year in New York, two years in California, and four years in Florida. Talk to an attorney or do a little research to understand the rules in your state.

How Much Is a Civil Assault or Battery Lawsuit Worth?

This is a tricky question, because it raises one of the biggest caveats involving lawsuits over an assault and battery.

On the one hand, there's what the injury case might be "worth" in terms of fair compensation for the victim's legitimate injuries (based on the different categories of damages, which we covered earlier). And on the other hand, there's how much of that fair compensation the victim can realistically expect to recover even if their assault and battery lawsuit is successful in court.

Winning an Assault or Battery Case Does Not Mean You Will Actually Get Compensation

From a practical standpoint, you can "win" an assault and battery lawsuit in court—meaning the judge or jury decides that the defendant harmed you, and that they should be made to compensate you for your damages—and still end up with little or no money to show for it.

In many kinds of personal injury cases, a liability insurance policy covers the underlying incident (think of car accidents and car insurance, or a slip and fall and homeowner's insurance). But since insurance policies don't cover intentional actions, you won't be able to count on an insurance company stepping in and paying any court judgment you end up receiving. Instead, you'll have to hope that the person who assaulted you has enough in the way of assets to pay the judgment. That might be wishful thinking. Learn more about the challenges of collecting a court judgment.

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. Let's look at some of the most common defenses to a personal injury lawsuit alleging assault or battery.

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 they consented to certain physical contact—getting hit in a game of football, for example—even if the contact ended up causing harm.

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.

Getting Help After an Assault or Battery

When you're harmed by someone else's intentional act, it can be difficult to sort out your options, especially if you're still recovering from your injuries. An experienced attorney can evaluate your situation and help you figure out whether it makes sense to pursue a lawsuit against the assailant in court, get law enforcement involved, or both.

Learn more about getting help from an injury lawyer. And if you're ready to reach out for help now, you can use the features right on this page to connect with a personal injury lawyer in your area.

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