Assault and Battery are what we call intentional torts. They differ from negligent acts like accidents because the wrongdoer has to intentionally commit the assault or battery. The basic difference between a battery and an assault is that a battery requires the wrongdoer to have physical contact with you while an assault does not require physical contact. Most likely, if a battery has occurred then an assault has a occurred.
To bring an assault action there are a few requirements. First, a person must have threatened you in some way with physical contact. Second, you must have reasonably believed that you were about to be touched or harmed. Third, you did not consent to that person’s actions. And finally that it appeared the person was going to carry out the threat and that you were harmed in some way.
Words, by themselves, are not enough for a claim of assault. The easiest example is if someone says, “I am going to kill you”. If they have some sort of weapon on them, then that would constitute an assault as long as you believed them. If, however, that person did not have any weapon and you knew they did not have any way or intention of killing you, then that would not be an assault.
Now, you may ask, what about the in between circumstances where a person makes a threat and you believe them, but they have no weapon as far as you know? That is where skilled lawyers, such as our law firm, come in. We can meet with you and discuss the specifics of your case to determine what the best way forward is.
To bring a battery action the difference is that the person must have physically contacted you. Any contact that is offensive or harmful constitutes a battery. For example, brushing by someone on bus or the subway would not be considered offensive but punching someone would be. The elements of a battery are similar to those of assault. Essentially, you have to show that someone intentionally physically contacted you, you did not consent to the contact, you were harmed by the contact, and that a reasonable person would have been offended or harmed.
Contact is not simply someone physically touching your body with a part of their body. It can also include extensions of a person such as a baseball bat or baseball. If someone throws a baseball at you and hits you then that would be a battery even though they never physically touched you.
However, simply because you were hit with a baseball does not necessarily mean you can bring a battery action. If a person playing baseball hits the baseball and it then it hits you and injures you that would possibly be a negligence claim because the baseball player did not act intentionally. In other words, they were not trying to hit you, they did not mean to hit you, it was an accident.