Assault And Battery In A Care Facility
Personal injury cases come largely in two varieties. The first type—negligence cases—are by and large the most common, arising for instances of carelessness. However, the law also provides remedies for individuals that are harmed by intentional conduct. These are referred to as intentional torts. Two of the most common intentional torts are battery and assault. These civil actions should be kept separate from the crimes of the same name; only the civil claims, which can be brought by the victim of these torts and not by state, are discussed below. These types of actions are unfortunately common in cases involving care facilities like “day care” and “nursing homes.”
Battery is an intentional contact of another person that is either harmful or offensive. The most common example of a battery is striking another person. However, the contact doesn’t need to be painful, instead it can simply be offensive, such as unwanted sexual touching. As the Kansas Supreme Court has repeatedly stated, the key to distinguishing battery from negligence by the defendant is the intention to make such conduct.
Battery requires some kind of physical contact. However, the contact does not have to be made by the defendant’s body. A common example would be shooting or stabbing the victim. The bullet or blade make contact with the victim, rather than the defendant, but these are still egregious batteries that act actionable. The contact also doesn’t have to be with the plaintiff’s body. Instead, contact with something in the plaintiff’s hand or on her person can suffice. A defendant may swat a cell phone out of the plaintiff’s hand or grab a hat off the plaintiff’s head. These two ideas can even come together, such as when a defendant pulls a chair out from under a plaintiff. The contact between the plaintiff and the floor is enough to establish the battery, and the intention of this contact, caused by the defendant’s actions, satisfies the intention requirement.
The intention to make the contact that a battery requires can be transferred to another person. A good example of this can be seen in Baska v. Scherzer. There, the plaintiff was hosting a party for her daughter and many of the daughter’s friends were in attendance. Two of the daughter’s teenage friends began pushing and punching one another. The plaintiff attempted to break up the fight and a stray punch hit her, causing her to lose several teeth. The court noted that the fact that the teen’s punch missed its target—the other boy—and found his friend’s mom didn’t matter: the intent to punch was what battery requires. Thus, this intention can be transferred to another victim.
A common issue with battery claims is the issue of consent. When the victim of the battery consents, there is no tort. This consent can be express—directly telling the defendant he or she can commit the contact—or implied based upon the circumstances. A good example of implied consent is participation in a contact sport: a running back cannot sue a linebacker for making a tackle, even though the running back clearly doesn’t want to be tackled and might even be injured by the physical contact. By playing the game, the player is consenting to physical contact, even if he does not directly state it. But consent has a proper scope. Any contact outside of this scope can be pursued as a claim for battery. As an extreme example, consider the running back again. He expects to be tackled, even tackled very aggressively, by the linebacker. But if the linebacker stabbed the running back instead of tackling him, he has clearly exceeded the scope of consent. This contact would be a battery because it is outside or in excess of the implied consent.
Another very common area where the precise scope of consent must be determined is in the context of sexual touching. In Smith v. Welch, a woman visited a physician for an examination as part of a lawsuit with a third-party. The woman’s claimed injuries involved her neck, but the doctor examined her breasts and attempted to touch her below her waist during the examination. The Kansas Supreme Court had no problem finding these actions well in excess of any implied consent the woman had given to be touched during the physical. The determination of consent can also be very problematic in the context of intimacy between the plaintiff and defendant. Consent to do one intimate act does not necessarily translate into consent to do another act, and such contact would be a battery.
Assault is the threat or attempt to make harmful or offensive contact with the plaintiff. To put it another way, assault is conduct that makes a person think they are about to suffer a battery. A key feature of assault is that no conduct needs to be made—it is the threat that is being addressed by this tort. The threat of harm has to be immediate, though. If a defendant threatens to punch the plaintiff in two weeks unless they make good on a debt, the threat may be actionable, but it is not an assault—the threatened harm is too remote.
Words Or Conduct
The law does not require a verbal threat to constitute assault. A defendant may simply raise a clenched fist towards plaintiff to constitute the threat. The key is whether a reasonable person would have felt threatened by the action and that the plaintiff, herself, did actually feel threatened. Thus, if the defendant winds up to hit the plaintiff while his back is turned, but thinks better of the action and simply walks away, there is no assault. A reasonable person would certainly feel threatened by the action, but the plaintiff never saw the action and never felt the threat.
Words, too can constitute an assault. Again, the key is determining if a reasonable person would believe that harmful contact was about to occur. For example, after stopping two brothers from bickering, their father may shout, “Keep that up and I’ll kill you!” Despite his words, neither the brothers nor a reasonable person in their shoes would actually feel threatened by these words alone. Contrast this with a bar fight. During the fight, the defendant may look at the plaintiff and say, “I’m coming for you!” A reasonable person would feel threatened, even though the words by themselves are less threatening than the previous example. The key will always be context. The context will determine both the “reasonable person” inquiry and the actual plaintiff inquiry.