Chapter 4 - § 4.3 • ELEMENTS DEFINED

• Jurisdiction: Colorado

§ 4.3 • ELEMENTS DEFINED

§ 4.3.1—Intent to Cause an Offensive or Harmful Physical Contact, or Intent to Place a Person in Apprehension of Such a Contact

Contact is defined in the Colorado Jury Instructions as follows:

A contact is the physical touching of another person. A harmful contact is one that causes physical pain, injury, illness or emotional distress. An offensive contact is one that would offend another's reasonable sense of personal dignity.⁵

The Colorado Jury Instructions for Civil Trials define apprehension of a harmful or offensive contact for purposes of an assault claim as a "state of mind experienced when a person anticipates immediate harmful or offensive physical contact."⁶ For a successful claim of civil assault, a plaintiff must prove that the defendant "intend[ed] to place another in apprehension of physical contact" by "act[ing] with the purpose of causing apprehension of physical contact; or ... knows that [his or her] conduct will probably place the other person in apprehension of physical contact."⁷ However, the plaintiff need not prove that the defendant intended the harm that actually resulted.⁸ It is enough that the actor intends to bring about an offensive contact or an apprehension of either a harmful or an offensive contact, and that the bodily harm results as a legal consequence of such offensive contact or apprehension.⁹

The intent to place another in apprehension of a harmful or offensive contact is not restricted to situations where only the intended victim is put in apprehension of the contact. A defendant may be liable for assault even if the conduct is directed to a person other than the plaintiff, if the plaintiff is the person ultimately affected by the conduct. If an act of assault is done with the intention of affecting a third person, but causes a harmful bodily contact to another, the actor is liable to such other as fully as though the actor intended so to affect him or her.¹⁰

In the Colorado Court of Appeals case of Hall v. McBryde,¹¹ the defendant acted with intent to cause an offensive contact with persons other than the plaintiff (firing a gun at youths fleeing in a car), but ultimately affected another person (the plaintiff, defendant's neighbor). The Colorado Court of Appeals found that the defendant's intent to place other persons in apprehension of a harmful or offensive contact was sufficient to satisfy the intent requirement for the plaintiff's claims. There is a jury instruction for this situation (called "transferred intent") that states:

It is not necessary that the defendant intended to make

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