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Basic Legal Principles
Although frequently used in a single phrase and often thought
of as a single offense, the terms "assault" and "battery"
refer to two separate torts. The two offenses are often committed
almost concurrently, that is, an assault followed immediately
by a battery. However, an assault does not include a battery
because it is merely the apprehension of a contact that if made
would constitute a battery. Although a battery is often a completed
assault, a battery still may be committed without an accompanying
assault, as in the case where the plaintiff was not aware that
a battery was imminent.
A person may be criminally as well as civilly liable for assault
and battery. The Penal Code defines assault as an unlawful attempt,
coupled with a present ability, to commit a violent injury on
the person of another. [Pen. Code §240] A battery is any
willful and unlawful use of force or violence on the person
of another. [Pen. Code §242]
In civil actions for assault and battery, the courts have sometimes
applied the Penal Code definitions and relied on criminal cases
in rendering their decisions. However, the torts of assault
and battery are not defined by statute, and thus the court is
afforded the opportunity to extend the concept of the tort beyond
the limits placed on the corresponding crime by its statutory
definitions. [See Lowry v. Standard Oil Co. (1944) 63 Ca1 App
2d 1, 146 P2d 57]
Elements Of Assault
An assault is a demonstration of an unlawful intent by one
person to inflict immediate injury on the person of another
then present. [Lowry v. Standard Oil Co. (1944) 63 Cal App 2d
1, 146 P2d 57] A civil action for assault is based on an invasion
of the right of a person to live without being put in fear of
personal harm. [Thing v. La Chusa (1989) 48 Cal 3d 644, 257
Cal Rptr 865, 771 P2d 814]
However, the Restatement Second, torts provides that a defendant
is liable for assault if: (1) he or she acts intending to cause
a harmful or offensive contact with the person of the plaintiff
or a third person, or an imminent apprehension of such contact,
and (2) the plaintiff is put in such imminent apprehension as
a result. [Restatement 2d, Torts §21]
The apprehension necessary for an actionable assault requires
that the plaintiff believe that the defendant's act may result
in imminent contact unless it is prevented by the plaintiff's
self-defensive action or by his or her flight or by the intervention
of some outside force. The plaintiff must actually be aware
of the imminent contact, but the plaintiff need not experience
fright at the prospect of the threatened contact.
To make a defendant liable for an assault, the defendant must
have intended to inflict a harmful or offensive contact on the
plaintiff or to have put him or her in apprehension of such
contact. Once that intent is formed and the defendant puts the
plaintiff in apprehension of the threatened contact, the defendant
is liable, even if he or she subsequently terminates the attempt
to inflict harm or that attempt is frustrated for some other
reason.
he Penal Code definition of assault requires that the defendant
have a present ability to commit a violent injury on the person
of another. [Pen. Code §240] However, one civil case has
held that the present ability to injure is not necessary for
an actionable assault. [Lowry v. Standard Oil Co. (1944) 63
Cal App 2d 1, 146 P2d 57(pointing of unloaded gun at another
in threatening manner constitutes assault unless it is known
by plaintiff that gun is in fact unloaded)]
Elements Of Battery
A battery is a violation of an individual's interest in freedom
from intentional unlawful, harmful, or offensive unconsented
contacts with his or her person. To establish a claim for battery
a plaintiff must demonstrate that the defendant intentionally
subjected him or her to a harmful or offensive touching which
actually and proximately caused plaintiff to suffer injury.
The defendant must intend to cause a harmful or offensive contact
with the person of the plaintiff or a third person, or an imminent
apprehension of such contact. However, intent is the gist of
an action for battery only where the battery was committed in
the performance of an act not otherwise unlawful. If the cause
of action is an alleged battery committed in the performance
of an unlawful or wrongful act, the intent of the defendant
to injure is immaterial. Moreover, where the defendant is guilty
of gross or culpable negligence, this may supply the element
of intent, so as to create a liability for an unintentional
injury which is the natural proximate consequence of the defendant's
conduct.
If the defendant forms the intent to cause the apprehension
of the threatened contact, as in an assault, and actual contact
results, he or she still is liable for battery, even though
the resulting contact was unintended.
The doctrine of transferred intent applies to causes of action
for battery. Thus, where a defendant intends to cause a harmful
or offensive contact with a third party, but instead causes
that contact with the plaintiff, he or she is liable to the
plaintiff for battery just as though he or she intended to cause
the contact with the plaintiff.
Sexual Battery
Under the Civil Code, a person may be civilly liable for the
commission of a sexual battery. A person commits a sexual battery
if he or she [Civ. Code §1708.5(a)]:
- acts with the intent to cause a harmful or offensive contact
with an intimate part of another, and a sexually offensive
contact with that person directly or indirectly results;
- acts with the intent to cause a harmful or offensive contact
with another by use of his or her intimate part, and a sexually
offensive contact with that person directly or indirectly
results; or
- acts to cause an imminent apprehension of the conduct described
in (1) or (2), and a sexually offensive contact with that
person directly or indirectly results.
"Offensive contact" means contact that offends a
reasonable sense of personal dignity. [Civ. Code §1708.5(f)]
"Intimate part" means the sexual organ, anus, groin,
or buttocks of any person, or the breast of a female. [Civ.
Code §1708.5(d)]
A person who commits a sexual battery on another is liable
to that person for damages, including, but not limited to, general
damages, special damages, and punitive damages. [Civ. Code §1708.5(b)]
The court may also award equitable relief, including, but not
limited to, an injunction, costs, and any other relief the court
deems proper. [Civ. Code §1708.5(c)]
Gender And Domestic Violence
The California Legislature in 2002 created a new civil action
for damages arising from gender violence. Civ. Code §52.4
provides that any person who has been subjected to gender violence
may bring a civil action for damages against any responsible
party. The plaintiff may seek actual damages, compensatory damages,
punitive damages, injunctive relief, any combination of those,
or any other appropriate relief. A prevailing plaintiff may
also be awarded attorney's fees and costs. [Civ. Code §52.4
subd. (a)]
The term "gender violence," is defined as either
one or more acts that would constitute a criminal offense under
state law that has as an element the use, attempted use, or
threatened use of physical force against the person or property
of another, committed at least in part based on the gender of
the victim, whether or not those acts have resulted in criminal
complaints, charges, prosecution, or conviction; or a physical
intrusion or physical invasion of a sexual nature under coercive
conditions, whether or not those acts have resulted in criminal
complaints, charges, prosecution, or conviction. [Civ. Code
§52.4 subd. (c)]
Also in 2002, the California Legislature created a new tort
of domestic violence. [Civ. Code §1708.6. In order to prove
liability under Civ. Code §1708.6 a plaintiff must prove
both of the following elements:
- the infliction of injury upon the plaintiff resulting from
abuse, as defined in Pen. Code §13700 subd. (a); and
- the abuse was committed by the defendant, a person having
a relationship with the plaintiff as defined in Pen. Code
§13700 subd. (b).
A person who commits an act of domestic violence on another
is liable to that person for damages, including, but not limited
to, general damages, special damages, and punitive damages.
[Civ. Code §1708.6 subd. (b)] The court, in an action pursuant
to this section, may grant to a prevailing plaintiff equitable
relief, an injunction, costs, and any other relief that the
court deems proper, including reasonable attorney's fees. [Civ.
Code §1708.6 subd. (c)] The time for commencement of an
action under this section is governed by Code Civ. Proc. §340.15.
[Civ. Code §1708.6 subd. (c)]
Persons Liable - Aiders
And Abettors
The direct perpetrator of an assault and battery is not the
only person liable for the tort. A party injured by an unjustified
assault may recover damages not only from the actual assailant,
but also from any other person who aids, abets, counsels, or
encourages the assault. The type of act which constitutes aiding
and abetting the assault depends on the circumstances. For example,
a defendant was liable for assault and battery where he brought
the direct perpetrator of the assault to the place where the
beating took place and waited with him with the evident purpose
of waylaying the plaintiff and taking him to a secluded spot,
assisted by driving the car, and stood by while the beating
was administered.
Persons Liable - Minors
A minor is liable for his or her torts, except that he or she
is not liable in exemplary damages unless at the time of the
act he or she was capable of knowing that it was wrongful. [Fam.
Code §6600] The minor need not possess the mental capacity
to appreciate the wrongful character of the act. A minor who
forcibly invades the person of another is liable for a battery
regardless of an intent to inflict injury; the only intent which
is necessary is that of causing the harmful or offensive contact
in question. Whether the minor had such intent is a question
of fact.
Parents ordinarily are not vicariously liable for the torts
of their children. However, a parent is under a duty to exercise
reasonable care so as to control his or her minor child to prevent
him or her from intentionally harming others or from so conducting
himself or herself as to create an unreasonable risk of bodily
harm to them, if the parent knows or has reason to know that
he or she has the ability to control the child, and knows or
should know of the necessity and opportunity for exercising
such control.
Certain specific statutes impose liability on a parent for
injuries to third persons caused by their children. [See, for
example, Civ. Code §1714.1 (civil liability for injuries
caused by willful misconduct of minor imputed to parent or guardian)
and Civ. Code §1714.3 (civil liability for injuries caused
by discharge of firearm by minor imputed to parent or guardian
under certain circumstances)]
Persons Liable - Employers
Under the doctrine of respondeat superior, an employer is vicariously
liable for the intentional torts of his or her employees committed
within the scope of the employment, including assault and battery,
if the employment includes risks that are inherent in, or created
by, the employment. The determination as to whether the risk
is inherent in, or created by, the employment is made by asking
whether the actual occurrence was a generally foreseeable consequence
of the activity. "Foreseeable" in this context means
that in the context of the particular enterprise an employee's
conduct is not so unusual or startling that it would seem unfair
to include the loss resulting from it among other costs of the
employer's business.
If the assault and battery was motivated by personal malice
not engendered by the employment, the employer is not vicariously
liable; but otherwise, liability may be found if the injury
results from a dispute arising out of the employment.
Medical Procedures Without
Consent
A physician who performs an operation to which the patient
has not consented is liable for battery. Moreover, a physician
is liable for battery when he or she obtains the consent of
the patient to perform one type of treatment, but subsequently
performs a substantially different treatment for which consent
was not obtained. In such a case, the requisite element of deliberate
intent to deviate from the consent given is present. [Grieves
v. Superior Court (1984, 4th Dist) 157 Cal App 3d 159, 203 Cal
Rptr 556] However, where the patient consents to a certain treatment
and the physician performs that treatment, but an undisclosed
inherent complication with a low probability occurs, no intentional
deviation from the consent given appears. Rather, the physician
in obtaining consent may simply have failed to meet his or her
due care duty to disclose pertinent information. In that situation,
the action should be one for negligence. [Cobbs v. Grant (1972)
8 Cal 3d 229, 104 Cal Rptr 505, 502 P2d 1]
When a physician is confronted with an emergency or an unanticipated
condition and immediate action is necessary for the preservation
of life or health of the patient and it is impracticable to
obtain consent to an operation which the physician deems to
be immediately necessary, it is his or her duty to do what the
occasion demands within the usual and customary practice among
physicians.
Defenses In Assault &
Battery Actions
Consent: One may consent to an act, otherwise
a battery, thereby vitiating the wrong. However, if defendant
fraudulently obtains the plaintiff's consent plaintiff's consent
may be invalidated. Moreover, if the consent is conditional
and the condition does not occur, defendant may be liable if
he or she acts in spite of the failure of the condition to occur.
The fact that the act consented to is illegal does not vitiate
the plaintiff's consent. Where a person submits to an illegal
act voluntarily and as a result suffers injury, the consent
still is valid and the defendant is not liable for assault or
battery.
Self Defense: Any necessary force may be used
to protect from wrongful injury the person of oneself, or of
a wife, husband, child, parent, or other relative, or member
of one's family, or of a ward, servant, master, or guest. [Civ.
Code §50] Thus, a person whose act would otherwise constitute
an assault or battery is not liable if the person commits the
assault or battery in self-defense or in the defense of those
persons enumerated in the statute.
A person who is reasonably defending himself or herself against
an assailant bears no liability for accidental injury to a third
party.
The degree of force which may be used must be limited to such
force as would have appeared to be necessary to a reasonable
person in all of the circumstances, knowing what the defendant
knew, and facing the facts which presented themselves at the
time to the defendant. In determining whether the degree of
force was reasonable, the amount of force exerted, the means
or instruments by which it was applied, the manner or method
of applying it, and the circumstances under which it was applied
are factors to be considered, but that determination is ultimately
one for the trier of fact. . If excessive or improper force
is employed, such force will itself constitute an assault and
battery though the act would have been lawful if excessive or
improper force had not been used. The necessity for the use
of force may be either real or apparent.
Self-defense is not available to a person who procures the
assault himself or to a person who has sought a quarrel with
the design to create a real or apparent necessity for making
an assault.
Defense Of Property: Any necessary force may
be used to protect from wrongful injury the property of oneself,
or of a wife, husband, child, parent, or other relative, or
member of one's family, or of a ward, servant, master, or guest.
[Civ. Code §50] The property one is entitled to protect
includes property that is in one's rightful possession. The
degree of force which may be used must be limited to such force
as would have appeared to be necessary to a reasonable person
in all of the circumstances, knowing what the defendant knew,
and facing the facts which presented themselves at the time
to the defendant.
A person may not ordinarily use deadly force or force likely
to cause serious bodily injury to protect his or her property,
unless the person reasonably believes that the defendant if
not expelled from the property is likely to cause death or serious
bodily harm to the person or to a third person whom he or she
is privileged to protect. It has been held that deadly force
may be used in defense of property where the recipient of the
deadly force is a felonious trespasser.
A person may be held civilly liable for assault and battery
if that person sets on his or her property a deadly mechanical
device, such as a spring gun, that kills or injures another.
However, an exception to this rule applies where the intrusion
by the person injured is, in fact, such that the property owner,
were he or she present, would be justified in taking the life
or inflicting the bodily harm with his or her own hands.
Arrest Or Other Lawful Act: A peace officer
has the privilege to use reasonable force to effect an arrest,
to prevent escape, or to overcome resistance. [Pen. Code §§835,
835a] The peace officer need not have an arrest warrant in order
to invoke the privilege. He or she may use reasonable force
if he or she has reasonable cause to believe that the person
to be arrested has committed a public offense. [Pen. Code §835a]
A peace officer, however, is never privileged to use excessive
force.
A peace officer who makes or attempts to make an arrest need
not retreat or desist from his or her efforts by reason of the
resistance or threatened resistance of the person being arrested;
nor will the officer be deemed an aggressor or lose his or her
right to self-defense by the use of reasonable force to effect
the arrest or to prevent escape or overcome resistance. [Pen.
Code §835a] A person has a reciprocal duty to refrain from
using force or any weapon to resist such an arrest if he or
she has knowledge, or by the exercise of reasonable care, should
have knowledge, that he or she is being arrested by a law enforcement
officer. [Pen. Code §834a]
Merchants and library employees have a statutory privilege
to use reasonable force to detain a person for the purpose of
conducting an investigation whenever the merchant has probable
cause, or the library employee has reasonable cause, to believe
the person to be detained is attempting to unlawfully take or
has unlawfully taken merchandise from the merchant's premises
or library materials from the library. [Pen. Code §490.5]
Acts Not Constituting
A Defense
Provocation: Provocation is not a defense
to an action for assault and battery. Provocative acts, conduct,
or words, if unaccompanied by any overt hostile act, will not
justify an assault and battery, no matter how offensive or exasperating
and however much such provocation may be calculated to excite
or irritate. However, provocation may be considered as a mitigating
factor with respect to an award of punitive damages. The plaintiff's
provocation does not absolutely bar recovery of punitive damages,
but rather may be considered in reduction of, or setoff against,
such damages.
Voluntary Intoxication: Voluntary intoxication
is likewise not a defense to an action for assault and battery.
[St. Ores v. McGlashen (1887) 74 Cal 148, 15 P 452]
Negligence Of The Plaintiff: Assault and battery
are intentional torts and thus the negligence of the plaintiff
is not a defense available to the defendant. But the plaintiff's
negligence may become an issue where an innocent bystander is
injured. If a person on whom a battery is being perpetrated
exercises his or her right of self-defense, he or she must exercise
reasonable care so as not to injure an innocent bystander, and
the defense of negligence in that respect may then become available
to the person unlawfully attacked as against the innocent bystander.
However, a defendant may not assert the negligence as a defense
against an innocent bystander who is injured by the defendant's
act by claiming that the bystander failed to retreat to an area
outside the range of the defendant's conduct.
General Procedural Outline:
No two cases are alike and procedures
vary with the nature and complexity of the legal and evidentiary
issues involved. The following is a very general outline of
the stages of a civil action.
Complaint Filing
Every case begins with the filing and service of a Summons
and Complaint. The Complaint will contain one or more "causes
of action" such as "Breach of Contract" or
"Fraud".
Service Of Complaint
After the Summons and Complaint have been filed with the court,
they must be properly served on the defendant(s). If the defendant(s)
will accept service, he/she may sign an Acknowledgment of
Service." Otherwise the documents will have to be formally
served.
Response To Complaint
The Defendant(s) have 30 days from the date of service of
the Summons and Complaint to serve on the Plaintiff(s) either
an Answer to the Complaint or a pleading challenging the sufficiency
of the the Complaint. Responses challenging the sufficiency
of the Complaint include a motion called a "Demurrer"
and a "Motion To Strike"
Hearing Of Challenges To Sufficiency
Of Complaint (If Applicable)
If the defendant(s) decide to file a demurrer or motion to
strike, these motions must be heard and ruled upon before
the matter may proceed. This can take up to 2 months. If such
motion is sustained and the court grants leave to amend the
Complaint, a new complaint must be drafted and served and
the process starts over. Sometimes a second demurrer or motion
will be filed causing more delays.
Discovery
Once the Complaint and Answer have been filed both parties
commence "discovery" procedures by which the evidence
necessary to prosecute both sides of the case. Depending on
the nature and complexity of the case, one or more of the
following discovery devices may be used by the parties:
- Interrogatories:
Written questions which must be answered under oath.
- Request For Production Of
Documents: Demands for production of documents
by the parties involved.
- Requests For Admission:
Requiring the parties to say which allegations they affirm
and which they deny.
- Deposition: The
parties may be required to appear in the opposing attorney's
office to answer questions under oath in front of a court
reporter. Depositions can also be taken from 3rd parties.
- Subpoena Documents From
Third Party: Documents may be subpoenad from 3rd
parties such as banks and employers.
Discovery Motions
(If Applicable)
If a party fails or refuses to comply with discovery requests,
it may be necessary for the party propounding the discovery
to make a motion in court to compel responses. If the court
grants the motion, further responses will be made. If those
responses are still inadequate, another motion may be made
and the court can sanction (fine) the resisting party. In
extreme cases the court can even terminate the action in favor
of the moving party.
Trial Setting
Throughout the case the court will set a series of Case Management
Conferences to be attended by attorneys for all parties. These
hearings are designed to determine whether the case is ready
for trial. When the court feels that a case is ready for trial,
it will set the date for trial and make orders concerning
completion of discovery and final preparation for trial.
Settlement Negotiations
Settlement negotiations may proceed throughout the trial.
Often the court will require the parties to try a mediation
of the issues or will set a "Mandatory Settlement Conference"
(MSC) before the trial date. Settlement negotiations general
become more intense as the trial date approaches.
Trial
The vast majority of cases settle before trial. However if
the parties cannot settle the case, the only way to resolve
the issues is by way of trial.
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