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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.

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Attorney answers 4

Best Answer
Posted

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

Asker

Posted

Thank God. The last two responses were a little dense. Haha! How could an attorney possibly read that question and not believe that it's hypothetical? I wasn't asking about damages, etc, I just wanted to know theoretically could both claims survive summary judgment. A professor didn't pose the question, but my girlfriend and I were up late studying for the bar last night and we started asking ourselves this question. I don't recall any discussion of this hypo in my torts class and it's not discussed in the Barbri materials.

Asker

Posted

Thank God. The last two responses were a little dense. Haha! How could an attorney possibly read that question and not believe that it's hypothetical? I wasn't asking about damages, etc, I just wanted to know theoretically could both claims survive summary judgment. A professor didn't pose the question, but my girlfriend and I were up late studying for the bar last night and we started asking ourselves this question. I don't recall any discussion of this hypo in my torts class and it's not discussed in the Barbri materials.

Asker

Posted

Thank God. The last two responses were a little dense. Haha! How could an attorney possibly read that question and not believe that it's hypothetical? I wasn't asking about damages, etc, I just wanted to know theoretically could both claims survive summary judgment. A professor didn't pose the question, but my girlfriend and I were up late studying for the bar last night and we started asking ourselves this question. I don't recall any discussion of this hypo in my torts class and it's not discussed in the Barbri materials.

Asker

Posted

Obviously I don't understand the internets or the idea of reposting

Posted

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.

Disclaimer- The information you obtain at our web-site or through postings on such sites as this is not, nor is it intended to be, legal advice. You should consult an attorney for specific advice regarding your individual situation. Any response given here is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change.

Asker

Posted

I wasn't interested in damages or recovery. It was just a hypo. Is it theoretically possible that both claims could survive summary judgment? That's all I was wondering. As a side note, AK is the abbreviation for Alaska. It's a very common mistake made by folks outside of Arkansas though, so don't feel bad.

Marc Sean Hurd

Marc Sean Hurd

Posted

Re: AK, sorry, my bad. I'm not sure what you're asking in your hypo about surviving summary judgment, but a defendant can be liable for both assault and battery (both civilly and criminally), depending on the facts. If someone punches you, that's battery. If you see the punch coming, that's assault. If you see the punch coming and then get hit, it's assault and battery.

Asker

Posted

Thanks for the response. What I was confused about was whether or not the doctrine of transferred intent would automatically negate tort liability for the assault.

Posted

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.

Asker

Posted

I'm not interested in damages. It was just a hypothetical question. Theoretically, are you saying that both claims, based on one act, could survive summary judgment?

Posted

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.

Legal Disclaimer:

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.

Asker

Posted

Is it possible for both claims to survive summary judgment? If so is it possible for a defendant to have separate liability for each tort?

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