4 Assault

• Library: Elements of Civil Causes of Action (SCBar) (2015 Ed.)

4 Assault

A. Definition

An assault occurs when a person has been placed in reasonable fear of bodily harm by the conduct of the defendant.¹ It has been described as "an attempt or offer, with force or violence, to inflict bodily harm on another or engage in some offensive conduct."²

In a departure from prior law, the South Carolina Supreme Court applied collateral estoppel to bar a defendant from relitigating liability for assault and battery. The court said that a person who has been criminally convicted is bound by that adjudication in a later civil proceeding based on facts the same as those underlying the criminal conviction.³

B. Elements

(1) Conduct of the defendant places the plaintiff

(2) in reasonable fear of bodily harm.⁴

C. Elements Defined

1. Conduct of Defendant

Generally, abusive words are not actionable as an assault.⁵ Threats, however, may be actionable if they are accompanied by the defendant's expression of intent to inflict injury on the plaintiff. ⁶ The conduct must be of a nature, and made under circumstances, that affect the mind of one of ordinary reason and firmness and influence his or her conduct or it must appear the person against whom a threat is made was peculiarly susceptible to fear, and the one making the threat knew and took advantage of that fact.⁷

There is a well-recognized distinction between criminal assault and a civil action for an assault and battery.⁸ In civil actions, intent, while pertinent and relevant, is not an essential element.⁹ Even if an assault is unintentional, if it is recklessly committed, the defendant may be liable for the resulting damages.¹⁰ A police officer may be liable for assault if he or she uses greater force than necessary under the circumstances.¹¹

2. Reasonable Fear

There must be just and reasonable ground for the fear, and a vain or idle threat is not sufficient.¹² Additionally, the conduct "must be made under such circumstances as to affect the mind of a person of ordinary reason and firmness, so as to influence his conduct; or it must appear that the person against whom it is made was peculiarly susceptible to fear, and that the person making the threat knew and took advantage of the fact that he could not stand as much as an ordinary person."¹³

In Gregg v. Ham,¹⁴ the defendant, a bail bondsman, went to the home of the plaintiff, a disabled woman who suffered from rheumatoid arthritis and the effects of several joint replacements, where he wrongly believed a fugitive might be hiding. He arrived early in the morning armed with a shotgun and allegedly shook the front door, demanded entry, threatened the plaintiff, and entered the house with his shotgun aimed head high or at chest level. A federal court concluded these facts were sufficient to support the jury's conclusion that the plaintiff was in reasonable fear of bodily harm.

D. Defenses

The most common defense to an action for assault and/or battery is self-defense.¹⁵If a defendant acts in justifiable self-defense, he or she may not be held responsible for damages in an action for assault and battery.¹⁶ The South Carolina Supreme Court has said that "[o]ne acting in self-defense to repel an unlawful attack is not guilty of assault; he may repel force with force and continue his self-defense as long as the danger apparently continues."¹⁷ Provocation which does not amount in law to justification is not a defense to assault and battery.¹⁸ Thus, statements made by the plaintiff a few days before the incident at issue provided no legal justification for the defendant's conduct.¹⁹ And, where the plaintiff said "hit me" to the defendant shortly before the latter struck the former, the absence of an offer of physical violence negated any justification.²⁰

The right to use reasonable force does not ordinarily include the use of a deadly weapon, but may where the conduct of the plaintiff produces in the mind of a person of "reasonable prudence and courage" apprehension of assault involving serious bodily harm.²¹ The defendant in his or her own place of business, or abode, is generally not required to retreat in the face of an assault in order to claim self-defense.²²

In Nauful v. Milligan,²³ the South Carolina Supreme Court said that assuming mutual combat would constitute a defense to a civil action for assault and battery, it was unavailable where the defendant testified he struck blows solely in response to derogatory comments made about his children. The court said for mutual combat to exist there must be a mutual intent and willingness to fight.²⁴ In criminal cases, the court has said that self-defense is generally unavailable to one who kills another in mutual combat.²⁵ If, however, the party first withdraws and makes a good faith attempt to communicate by word or act a refusal to engage in further conflict, the right to self-defense is restored.²⁶

A police officer who uses reasonable force in effecting a lawful arrest is not liable for assault or battery.²⁷ Sovereign immunity may apply where an officer considered an "arm of the state" is acting in his or her official capacity.²⁸

While intent is not a necessary element of an action for assault, a federal court dismissed a claim against a city because under the South Carolina Tort Claims Act,²⁹ immunity for intentional torts has not been waived,³⁰ and therefore, the city had "immunity for the claims made against it for the intentional tort" of assault.³¹

Contributory negligence is a defense in a negligence action, not for what is generally considered an intentional tort such as assault. However, there is authority for application of contributory negligence where liability for assault in based on negligence.³² If contributory negligence is available as a defense it requires that the defendant show the plaintiff was negligent³³ and that the negligence was the proximate cause of the injuries.³⁴ Traditionally, contributory negligence was a total defense to the cause of action; however, South Carolina has adopted comparative negligence under which the plaintiff may recover if his or her negligence is not greater than the defendant's in which case the plaintiff's recovery is reduced in proportion to his or her negligence.³⁵ Punitive damages, however, are not reduced by the proportion of the plaintiff's negligence under comparative negligence.³⁶

A defendant who enters a guilty plea — including an Alford plea³⁷ — in a criminal proceeding is collaterally estopped from litigating the issue in a subsequent civil action based on the same facts underlying the plea.³⁸

The statute of limitations applicable to injuries to the person or rights of another is three years for actions arising on or after April 5, 1988, and six years for those arising before that date.³⁹ Actions initiated under the provision must be commenced within three years after the plaintiff knew, or by the exercise of reasonable diligence should have known, that a cause of action existed.⁴⁰

E. Damages

Actual and punitive damages have been awarded for assault.⁴¹ Punitive damages may be recovered where the defendant's actions are willful, wanton, or in reckless disregard of the plaintiff's rights.⁴² Even if the defendant does not realize he or she has invaded the plaintiff's rights, punitive damages may be awarded if the act is committed in a manner that a person of ordinary prudence would conclude was done in reckless disregard of the rights of another.⁴³

In Gregg v. Ham,⁴⁴ the plaintiff was awarded $50,000 in actual damages and $10,000 in punitive damages on her assault claim. She testified the "assault caused her to change her behavior, left her scared, and disrupted her sleep." Her psychologist concluded she suffered from depression and anxiety as a result of the assault and diagnosed her with post-traumatic stress disorder, a condition exacerbated by her physical disabilities. The appellate court affirmed the damages based on that testimony.

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Notes:

^[1]Gathers v. Harris-Teeter Supermarket, 282 S.C. 220, 317 S.E.2d 748, 754-55 (Ct. App. 1984). See also Moody v. Ferguson, 732 F. Supp. 627...