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Is it possible for a person to have to have tort liability for both assault and battery?

Little Rock, AR |

For example, if Defendant waives a gun at Plaintiff, placing Plaintiff under reasonable apprehension of an immediate pistol whipping and in that same motion the pistol strikes Plaintiff, Defendant would be liable for battery even if he intended to commit only an assault due to transferred intent.

However, does transferred intent apply where the Defendant had merely general intent?

In other words, is it possible for a Defendant to be liable for both assault and battery due to one act on the part of the Defendant?

I am trying to determine whether or not, regardless of intent, could Defendant first be liable for assault and then battery for the same action. In other words, does transferred intent negate the first tort that the Defendant committed? Or does it supplement it? I know that the answer is much more simpler than I am making it out to be, but for some reason I'm really hung up on this issue. I hope that I'm articulating my question clearly.

Attorney Answers 4


  1. Best answer

    Unless I miss my guess, I bet your instructor has a particular case in mind when they formulated the assignment. ;)


  2. I can't speak specifically to AK law (as I'm admitted only in CA), but generally speaking both assault and battery are not only crimes but also torts and actionable in civil courts. If you were "apprehensive" as you say, there is likely some emotional distress that goes with that, and if you were injured as a result of being struck by the pistol, then you could sue for any damages including medical costs, loss of earnings (if applicable) and general damages (the "pain and suffering"). However, if you did not incur medical costs, your case may not have a significant value. Further, you would have to look to just how "collectable" any judgement would be. If the assailant had some type of insurance that covered negligence (most policies don't cover intentional acts, so if you only plead the intentional battery as opposed to some form of negligent battery, the actions may not be covered), you may be able to get an insurance settlement.

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  3. Generally speaking, you can pursue both torts in civil court. The elements of damages will be different for each tort. However, you will not get very far without being able to prove damages. I would suggest that you retain an experienced attorney in your area to advise you. Good luck to you.

    The information provided by me should not be considered legal advice and does not establish an attorney-client relationship. I am licensed to practice law in Florida and you should consult with an attorney in your area for legal advice. The information exchanged on avvo.com is not privileged and you should not share confidential information over this forum.


  4. Yes. Assault is different from a battery. Based on your description, you have the elements to prove both.You could plead them conjunctively or alternatively.

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    If this information has been helpful, please indicate below.

    Mr. Lundeen is licensed to practice law in Florida and Vermont. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Lundeen strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.

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