In Oregon, an assault is an intentional attempt to do violence to the person of another, coupled with present ability to carry the intention into effect. Actual physical contact is not required for an assault to occur. An assault occurs simply with the threat of physical contact. For example, shooting a gun at a person, and missing, is an assault even though no actual physical contact occurred. Reckless behavior does not amount to assault since assault requires intent to cause unwelcomed physical harm. Words alone, no matter how inflammatory or violent, are not sufficient to constitute an assault. Damages may be recovered for assault even when there was no battery or bodily injury.
A battery is the voluntary unlawful physical touching of another which causes intentional harm or physical offense to that person. It is not necessary that the unlawful touching cause actual physical harm in order for a battery to have occurred. For example, unwanted and unwelcome sexual touching constitutes battery even though such touching may not result in actual physical injury. The unlawful touching does not have to be person to person to constitute a battery. Using an intervening object to cause the physical offense to the victim is sufficient to constitute a battery. The obvious example is the use of a baseball bat to physically harm somebody. The less obvious example of battery is the intentional spilling of ice on a floor so that a person will slip and fall, thus causing personal injury.
Mere words, no matter how inflammatory or insulting, cannot justify an assault and battery.
Recoverable Damages for Assault and Battery – Beaverton Personal Injury
Mental Distress: A plaintiff may recover damages for mental distress when such distress naturally and directly results from the assault and battery.
Medical Expenses: A plaintiff may recover all economic damages, including all reasonable and necessary medical expenses, including counseling and mental health expenses, which are incurred as a result of the assault and battery.
Lost Wages: As an additional recoverable economic damage, a plaintiff may recover any wages lost as a result of the assault and battery.
Noneconomic Damages: This represents subjective, noneconomic damages for pain, suffering, humiliation, etc. There is a five hundred thousand dollar cap on noneconomic damages in assault and battery cases.
Punitive Damages: These are damages meant to economically punish the perpetrator of the assault and battery for their behavior. It does not matter that the perpetrator of the assault and battery may have already been criminally punished. Unlike other noneconomic damages, there is no cap on punitive damages.
Assault and Battery – Parties Liable
Parents for Unemancipated Children: Pursuant to Oregon Revised Statute 30.765, the parents of an unemancipated minor child are liable for the actual damages to a person or property caused by any intentional or reckless act committed by the child, including personal injury damages caused by an assault or battery perpetrated by the child. However, the liability of the parents is limited to $7,500.00.
Employer: An employer is liable for an assault or battery perpetrated by an employee when the employee acts within the course and scope of their employment or when the employer directed, authorized, or ratified the acts constituting assault or battery. Further, the employer may be liable for an assault or battery perpetrated by an employee if the employer was negligent in selecting or training the employee involved.
Owner of a Business: The owner of a business may be responsible for an assault or battery that occurs between patrons of the business. For example, the owner of an establishment may be liable for an assault or battery if they failed to provide adequate qualified employees or security to prevent the assault or battery from occurring. Likewise, the owner of an establishment that serves alcohol may be liable for assault or battery for allowing into the business a patron known for violent propensities or for negligently over-serving an intoxicated person and allowing them to remain on the premises.
Mitigation of Damages
A plaintiff may be entitled to recover punitive damages in an assault and battery claim. However, the Oregon Supreme Court has held that a defendant may present evidence that conduct of the plaintiff precipitated or provoked the assault and battery, and such evidence can be used to mitigate the punitive damages. Also, the character of the conduct of the defendant and the motive for that conduct may mitigate the punitive damages in an assault and battery claim.
Article by Attorney Keith R. Shepherd
Keith R. Shepherd is the managing partner of the personal injury and wrongful death division of White & Shepherd, LLP. Keith is a graduate of Gonzaga University School of Law where he achieved Magna Cum Laude honors. Keith has successfully handled thousands of personal injury and wrongful death cases through settlement negotiations, mediation, arbitration, and trial. Keith is a member in good standing with the Oregon State Bar, the Multnomah County Bar Association, and the US District Court for the District of Oregon. Keith is dedicated to providing his clients with reliable, competent, and zealous legal representation.
These articles have been prepared by attorney Keith R. Shepherd as means to provide general information regarding personal injury and/or wrongful death claims. Each case should be evaluated individually on its merits by a competent attorney, and in no way should these articles be construed as specific legal advice or as the basis for the formation of a legal relationship with White & Shepherd, LLP. For a free consultation regarding your case, please email Keith R. Shepherd at firstname.lastname@example.org or call 503-922-2028. Please also visit our website at www.beavertonpersonalinjurylawattorney.com
A roundup of the best tips and legal advice.