Texas recognizes different types of “Assault.” This blog post is limited to instances of assault that inflicts bodily injury. It does not cover other types of assault, such as offensive physical contact or threat of bodily injury, or claims for intentional infliction of emotional distress, false imprisonment, or premises liability.
The simplest example of assault is when another person punches you and gives you a black eye. But there are many other instances as well that could be considered assault if the action meets these three elements:
- The defendant acted intentionally, knowingly, or recklessly.
- The defendant made contact with the plaintiff’s person.
- The defendant’s contact cause bodily injury to the plaintiff.
As we unpack what each element means, we will be able to notice additional examples of assault.
This is common sense. It is the person who actually committed the assault. For example, the manager of a nightclub who grabbed the plaintiff in a chokehold and dragged him out of the club was liable for assault.
Does it matter if the person who is doing the assault is a minor? Not at all. In fact, there is no specific age at which minors are immune as a matter of law. There is case law that discussed how a four-year-old could be liable for assault that left the babysitter with a crushed larynx and a seven-year-old who was liable for starting a fire that burned down the neighbor’s house.
Practically, the minor’s parents cannot be held vicariously liable for the intentional torts of their children but they can be liable for their own negligence when their children injure someone.
There are situations where someone other than or in addition to the defendant doing the assault can be held liable under a theory of vicarious liability. For example, an employer can be vicariously liable under the doctrine of respondeat superior for an assault committed by its employee within the course and scope of their employment. There are several theories such as Ratification, Aiding and Abetting, and Conspiracy that will be discussed in future posts.
Defendant’s State of Mind
A plaintiff will have to prove the defendant acted intentionally, knowingly, or recklessly.
Intentional conduct is when they have the conscious objective or desire to engage in certain conduct (e.g., aiming the bat at your knees) or cause a certain result (e.g. holding the lit cigarette against your skin).
But what if the defendant tried to punch your friend, missed, and ended up punching you instead? That counts too because they intended the assault but it just happened to someone that they did not intend.
Knowing conduct is when the defendant is aware that the nature of their conduct or the surrounding circumstances is reasonably certain to cause the result. This is only slightly different that intentional conduct. One court of appeals has noted that the difference is between desiring the result and being reasonably certain that it will occur.
Reckless conduct is when the defendant is aware but consciously disregards a substantial and unjustifiable risk that harm will result from the conduct. The risk must be of such a nature and degree that disregarding it constitutes a gross deviation from the standard of care an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.
But recklessness is a lower standard of culpability than intent or knowledge yet it is a higher standard than negligence. This gets deep in the weeds so I won’t confuse you on this one.
Contact with Plaintiff
We would need to prove in court that the defendant contacted or caused an object to contact the plaintiff’s body or clothing, or anything attached to the plaintiff’s body or practically identified with it.
Direct contact examples include a defendant holding the plaintiff in a headlock or a football coach striking a 12-year-old player’s helmet, knocking him down.
Indirect contact is enough if the defendant set a force in motion that ultimately produced the result. One of the most common examples is when a defendant crashes their car into the plaintiff’s car. That is indirect contact. (And so is when the defendant shoots the plaintiff with a gun).
Essentially, the plaintiff must prove they suffered some pain, illness, or impairment as a result of the contact as long it amounts to more than mere offensive touching.
Sometimes, it is difficult to determine whether an injury rises to the level of bodily injury. In those cases, we will almost always sue for the other type of assault as well — offensive physical contact.
There are different time frames in which you must file a law suit depending on the type of assault so it is important to consult with me immediately. Additional issues to be explored are defenses to the assault such as self-defense, protection of property, provocation, etc, and whether there is also a criminal case for the same conduct.
Bottomline, give me a call today if you would like to discuss your case.