Most people think of assault as a criminal offense in which a person physically attacks another person. Although assault is a crime in Texas, it is also a civil injury. By historical definition, what we call assault today was two types of claims: assault and battery. Battery is the actual offensive contact. Assault is an apprehension or perception of imminent offensive contact.
We have generally collapsed these terms together into assault although a party can still bring a cause of action for assault under either type of claim (or both) in a Texas civil court. Assault is an intentional tort, so a plaintiff must prove the defendant had intent or a comparable state of mind to cause the injury alleged. Assault is never a negligence claim in which the defendant allegedly failed to exercise reasonable care. This is an important point to keep in mind through this discussion.
There are three types of claims that can be brought as an assault claim in a Texas civil court
1. Infliction of bodily injury through physical contact;
2. Infliction of offensive physical contact;
3. Threat of imminent bodily injury.
Let’s talk about each of these types of claims individually and then wrap up the discussion talking about why you might want to bring an assault claim in a Texas civil court.
Infliction of bodily injury through physical contact
An assault claim alleging an infliction of bodily injury is exactly what it sounds like. Let’s first identify the elements of this cause of action:
1. Defendant acted intentionally, knowingly, or recklessly;
2. Contact made by the defendant with the plaintiff’s person;
3. The resulting bodily injury was foreseeable;
4. Plaintiff actually suffered some pain, illness or impairment as a result of the contact.
The first element requires a plaintiff to prove the defendant’s state of mind. The plaintiff may prove the defendant had actual intent to cause an injury to plaintiff or another person (but then caused harm to plaintiff). The plaintiff may also prove the defendant acted knowingly by proving the defendant was reasonably certain injury would occur even if defendant really hoped injury would not follow. A plaintiff may alternatively prove the defendant acted recklessly. Under Texas law a person acts recklessly when she is aware of but consciously disregards a substantial and unjustifiable risk that harm will result from the conduct. The difference between these states of mind is minor but can be significant in an assault claim. Let’s work through some examples to demonstrate the difference:
A. Robocop is driving a police car on the freeway in Dallas and sees Tana, an everyday citizen, driving down the freeway two lanes over. He decides he wants to drive into her and swerves his car into hers, causing her bodily injury. Robocop intended to cause bodily harm to Tana.
B. Robocop is driving that same car on the Dallas freeway and sees Tana also driving two lanes over. He swerves his car towards Tana’s car but screams, “I do not want to hit Tana!” He hits her car and causes her bodily injury. Robocop may not have intended to cause her harm but he had to have been reasonably certain that driving directly toward another vehicle across the freeway would cause the cars to collide. He knowingly caused her bodily harm.
C. Robocop is on the same freeway in Dallas in his police cruiser. He doesn’t see Tana in another car but he does see the exit he meant to take. He swerves his car across the freeway to make the exit and in the process hits Tana’s car and causes bodily injury. In this case he did not intend to hit her nor was he reasonably certain he would hit her. Instead, he know he could have hit other cars (he is a police officer, after all) and disregarded that risk. In this case he recklessly caused her bodily harm.
The second element requires contact. It’s difficult to have one person injure another without contact. That contact may be from person to person (e.g. a punch in the face) or involve an object in on of the parties’ control (e.g. a gun or a car). A defendant could shoot the plaintiff and cause bodily injury or drive his car into her car and cause her injury. The defendant could also cause an assault by making contact with an object in the plaintiff’s control that then causes bodily injury (e.g. plaintiff is holding a spear and you grab and twist the spear and it stabs the plaintiff).
The third element can be tricky. When an injury is the direct and immediate result of the contact then it’s easy to prove the bodily injury was foreseeable. You stab somebody with a sword then it is foreseeable that the person would be injured by the stab wound. However, when the bodily injury is not immediately caused by the contact or the contact would not reasonably result in a bodily injury then it is more difficult to prove the defendant could have foreseen the injury. Say you give somebody a slight nudge to get their attention and it startles them and they crash through a plate glass window then it may not be as easy to prove the injury was foreseeable. That is not a typical result for that type of contact.
And forth there has to be some type of pain, illness or impairment caused by the contact. The pain does not have to be severe or long lasting but keep in mind that a plaintiff can only recover for the injuries caused and no jury is going to award a serious award for a few minutes of discomfort. If all you experience is embarrassment or humiliation then this is not the right type of assault claim to bring.
Infliction of Offensive Contact
If you do not suffer pain, illness or impairment caused by the contact but instead the contact is offensive or unwelcome then that type of assault claim would be brought for offensive contact. (A claim for bodily injury can also be a claim for offensive contact in most cases.) These types of assault claims normally include sexual assault claims in which the harm is emotional or mental rather than physical. A sexual assault could result in bodily injury but a sexual assault does not have to result in a bodily injury. Let’s go ahead and identify the elements of this assault claim:
1. Defendant acted intentionally or knowingly;
2. Defendant made contact with plaintiff’s person;
3. Defendant knew or reasonably should have believed plaintiff would regard the contact as offensive or provocative;
4. Defendant’s contact caused injury to plaintiff.
Notice in the first element there is no reckless state of mind. That is because an offensive contact assault claim requires the defendant to know or be expected to know that the contact would be considered offensive. We set a different standard for offensive touching because the defendant has to know (or should know) that the contact would be offensive. A person acting carelessly may offensively touch another person but we do not punish people for offensive touching unless they intended to offend the victim or acted with reasonable certainty that they would offend another person.
Again we need to have physical contact and the same rules will apply that the contact can be from person to person or through an object in the control of either party.
In this case we have a foreseeability element in the third element but we are no longer concerned with whether the injury was foreseeable but whether the offensiveness was foreseeable. The defendant may have had actual knowledge that the plaintiff would be offended by the contact. For example, if the defendant knew the plaintiff would be greatly offended by being tickled then defendant has actual knowledge. But may the defendant doesn’t know plaintiff but ran up to her in public and groped her. Defendant had no actual knowledge of plaintiff’s ideas about offensive contact but defendant reasonably should have believed plaintiff would be offended.
And last, plaintiff must have suffered some injury. Here no physical pain or other physical harm is necessary. It is enough that plaintiff suffered personal indignity but as with bodily injury, the severity of the indignity will determine the plaintiff’s ability to recover for the assault.
Threat of Bodily Injury
Now we can turn to the historical meaning of assault as a threat of bodily injury. An assault cause of action brought for a threat of bodily injury does not require physical contact but a plaintiff still must prove a specific type of threat was intentionally made by the defendant and that the threat had an effect on the plaintiff. So let’s again look at the elements:
1. Defendant acted knowingly or intentionally;
2. Defendant threatened plaintiff with imminent bodily injury;
3. It was foreseeable that plaintiff would be injured by the threat;
4. Plaintiff suffered an injury as a result of the threat.
In our state of mind element we once again see recklessness left out. Like our offensive contact claim, we do not punish people for their carelessness with their words or expect people to worry that any person in earshot may take a comment as a credible threat. We have civil remedies for intended threats or statements reasonably considered a threat.
For example, an Eagles fan walks into a sports bar full of Cowboys fans before a Cowboys-Eagles game and screams, “We’re going to kill you today!” Sure, somebody in the crowd could think it’s a threat but most people are going to think it’s just about the game. Certainly anybody could think that was a threat of bodily harm but we only want to create a remedy where the threat was made or reasonably can be described as being made to make somebody believe bodily harm is imminent.
Threat of bodily injury
We also need an actual threat of bodily injury. A threat of bodily injury is a declaration of intent to inflict punishment, loss, or pain on another person. It also has to be a threat of imminent harm. That means the threat has to be of a present harm that is on the verge of happening. Threats of future harm do not count. So for example, Robocop walks up to you and says, “Dead or alive you are coming with me!” He pulls out his gun and aims it at you. That is an imminent threat of harm. However, let’s say he comes up and says, “Dead or alive you’ll come with me tomorrow.” That would not be an imminent threat because the threatened harm won’t occur until the next day.
Next the plaintiff must prove that the injury caused by the threat was foreseeable. The minimum injury for this type of claim is that the plaintiff was apprehensive. The plaintiff then must show that she was apprehensive and that it was foreseeable that she would be apprehensive. If somebody pulls a gun and tells you he will kill you then it is foreseeable you will be apprehensive. However, if a child comes to you with his fingers pointed like a gun and says the same thing then that’s probably not foreseeable apprehension.
And of course the plaintiff must prove apprehension and any other injury plaintiff alleged resulted from the threat. Apprehension is a very low standard. Texas courts have ruled that a plaintiff does not even need to prove fear, just apprehension about the threat. Like our other assault claims, the greater the injury the greater the relief can be.
Apprehension likely does not get the plaintiff a meaningful result; but if the threat caused the plaintiff other injuries then a substantial recovery may be possible. For example, if a coworker threatens to kill you if you show up for work and you lose your job because you don’t want to die then you may be able to recover for lost wages. Another example is a person walks up and threatens to beat you up. You try to run away and injure yourself escaping. That would give you an opportunity to recover for the physical injuries although the threatening individual never touched you.
Why you might bring an assault claim in Texas civil courts
We’ve already discussed that the severity of harm suffered would affect the extent a plaintiff can recover. Most assault lawsuits involve plaintiffs who suffer serious bodily harm, sexual assault, or some type of significant financial loss. That does not mean a claim for a less severe assault may not be appropriate. The expense of litigation in Tarrant County and Dallas County often requires significant recovery to make it cost beneficial.