Chapter 5 ASSAULT

• Jurisdiction: North Carolina

5 ASSAULT

A. Definition

Assault occurs when a person is put in apprehension of harmful or offensive contact, without any actual contact.¹

The tort protects the plaintiff's right to be free from the indignity of the apprehension of a harmful or offensive contact with his/her person.² An action for assault may also lie where the defendant, in the accomplishment of a legitimate purpose such as justifiable arrest, uses force excessive under the given circumstances.³

B. Elements

In order to establish an action for assault, a plaintiff must show:

(1) The defendant attempted by an intentional act, or by a show of force or violence, to cause an offensive or harmful physical contact with the plaintiff which injures the plaintiff;
(2) The plaintiff was placed in reasonable apprehension of an imminent threat of physical injury; and
(3) The defendant had present ability to cause the offensive or harmful physical contact with the plaintiff.⁴

C. Elements Defined

1. Causing an Offensive or Harmful Physical Contact with Plaintiff

The tort of assault protects the plaintiff's right to be free of an impending and harmful or offensive contact to which (s)he has not consented.⁵

2. Reasonable Apprehension by Plaintiff

The plaintiff must prove that (s)he was aware the imminent contact with his/ her body at the time that the contact occurred.⁶ Ordinarily, mere threats or words unaccompanied by an act or display to carry out the threat are not enough to cause reasonable apprehension.⁷

3. Of Imminent Threat of Physical Injury

The apprehension that the plaintiff feels must be apprehension of imminent contact, to be distinguished from apprehension of future contact.⁸ Threats of future action do not fall within the definition of assault, and imminent means that the threat will take place with "no significant delay."⁹

North Carolina law also recognizes the concept of transferred intent, in which an act is done with the intention of affecting a third person, but which puts another in apprehension of a harmful or offensive contact. In that case, "the actor is subject to liability to such other as fully as though he intended to so affect him."¹⁰

D. Defenses

The statute of limitations for the tort of assault is three years.¹¹ A defendant in a battery action may also invoke the privilege of defense of self or defense of a family member.¹² Consent by the plaintiff may also be a defense to an assault action.¹³ Qualified immunity may also be a defense, for example, when force is used to accomplish a legitimate purpose as in a justifiable arrest.¹⁴

E. Damages

Actual damage is not an essential element of assault.¹⁵ Punitive damages may also be available.¹⁶ Provocation may be considered in mitigation of damages.¹⁷

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Notes:

^[1] City of Greenville v. Haywood, 130 N.C. App. 271, 502 S.E.2d 430 (1998), review denied, 349 N.C. 354, 525 S.E.2d 449 (1998); Morrow v. King's Dep't Stores, 57 N.C. App. 13, 290 S.E.2d 732, disc. review denied, 306 N.C. 385, 294 S.E.2d 210 (1982).

^[2] Johnson v. Bollinger, 86 N.C. App. 1, 5, 356 S.E.2d 378, 381 (1987). Note that unauthorized medical procedures may also amount to assault or battery. See Nelson v. Patrick, 58 N.C. App. 546, 293 S.E.2d 829, appeal after remand, 73 N.C. App. 1, 326 S.E.2d 45 (1982).

^[3] See Thomas v. Sellers, 142 N.C. App. 310, 542 S.E.2d 283 (2001).

^[4] Dickins v. Puryear, 302 N.C. 437, 444, 276 S.E.2d 325, 330 (1981); Hawkins v. Hawkins, 101 N.C. App. 529, 400 S.E.2d 472 (1991), review allowed, 329 N.C. 496, 407 S.E.2d 533 (1991), aff'd, 331 N.C. 743, 417 S.E.2d 447 (1992).

^[5] City of Greenville v. Haywood, 130 N.C. App. 271, 502 S.E.2d 430 (1998), review denied, 349 N.C. 354, 525 S.E.2d 449 (1998); Morrow v. King's Dep't Stores, 57 N.C. App. 13, 290 S.E.2d 732, disc. review denied, 306 N.C. 385, 294 S.E.2d 210 (1982); McCarcken v. Sloan, 40 N.C. App. 214, 252 S.E.2d 250 (1979) (defendant's smoking cigars while in his own office, even though he knew that that the smoke was offensive to the plaintiff, did not amount to assault or battery). See also Andrews v. Land, 225 N.C. App. 264, 736 S.E.2d 649 (2013), in which plaintiffs filed suit for assault against their neighbor, who regularly fired automatic weapons into a dirt mound. The plaintiffs claimed the noise from the weapons fire placed them in "reasonable apprehension for their immediate safety and the infliction of an immediate battery." The court concluded that no assault took place and that there was no legal precedent for the "proposition that noise alone can be the basis for civil assault liability, nor have they alleged sufficient facts to demonstrate that their...