ASSAULT AND DEFENSES

Cullison v. Medley

FACTS: The plaintiff encountered the 16-year-old female defendant, in which they exchanged
pleasantries and then went to the plaintiff’s home together to talk further. The plaintiff was later
confronted by the five people related to the defendant in his trailer. The defendant’s father
appeared to have a gun in a holster strapped to his thigh. He grabbed the gun several times and
shook it while threatened to jump astraddle the plaintiff even though he never withdrew the gun
from it holster. The Plaintiff alleged an assault. The Court of Appeals decided that the because
the defendant did not removed his gun from the holster and since the threat to jump astraddle
only constituted an unconditional language, which does not express any intent to harm the
plaintiff, therefore the defendant did not commit an assault. The plaintiff filed an appeal to the
state’s Supreme Court

ISSUE: Whether defendant intent imminent apprehension of contact, when he confronted the
plaintiff in his trailer with a gun strapped to his thigh, while grabbing and shaking it at the
defendant, even though the gun never removed from its holster.

RULE: For the purpose of assault, the act must intend to cause harmful or offensive contact
another, or an imminent apprehension of that contact. The act must be one in which to a
reasonable person mind arouse such apprehension thereby invading the plaintiff’s mental peace.

APPLICATION: Here, the defendant intended to frighten the plaintiff by confronting him in his
trailer with a gun strapped to his thigh, grabbing and shaking even though the gun was never
removed from its holster. He committed an assault because such display of force will aroused
mental trauma in the mind of a reasonable person.

CONCLUSION: Therefore, the plaintiff apprehension of being shot or injured was one which
would normally be aroused in the mind of a reasonable person. The trial court erred when it
moved to enter summary judgment for the defendant on the count two allegation of assault
because
 Brower v. Ackerley

FACTS: The plaintiff, an active civil affair advocate received several harassing phone calls from
the defendant, who the plaintiff complained to the city was erecting billboards without permits
from the city. When the city passed a billboard ordinance law, the plaintiff received two explicit
phone calls saying, “I’m going to find out where you live and I’m going to kick your ass” and
later, “You are finished; cut you in your sleep”. The plaintiff made a complaint to the police but
the city filed no criminal charges against the defendant based on the police report. The plaintiff
filed a civil suit against the defendant for the emotional distress he suffered from the telephone
calls. The case was dismissed and the plaintiff filed an appeal from the summary judgment
dismissal of his claims.

ISSUE: Whether the physical harm threatened in the phone call were imminent to constitute an
assault when the defendant alleges they were going to find out where the plaintiff lives, kicked
his ass and cut him while he sleeps.

RULE: To constitute assault, a person must acts intending to cause harmful or offensive contact
to another, or an imminent apprehension of that contact and the threat must result to
apprehension. Words alone are not enough to make a person liable for assault unless the words
are couple with other acts or circumstances that might otherwise put the other person in
reasonable apprehension of an imminent harmful or offensive contact with his person.

APPLICATION: Here, the defendant’s explicit phone threats “I’m going to find out where you
live and I’m going to kick your ass” and later, “You are finished; cut you in your sleep” were not
imminent to indicate that they will be followed by physical harm. Even though the plaintiff
suffers emotional damages the phone threat did not create immediacy in a way that would have
proven to the court that an acts or circumstances were imminent to cause harmful or offensive
contact to the plaintiff.

CONCLUSION: Therefore, the defendant is not liable for assault and the dismissal of the
assault case is still affirmed.
 Hall v. Mcbryde

FACTS: The defendant was visiting his parent’s house when he noticed some other youths in a
car approaching his house; he then retrieved a gun from the house. After being fired upon by the
other youths, defendant fired four shots toward the car containing the other youths. During the
altercation one bullet struck the plaintiff, who resided next to the defendant’s house, causing an
injury to his abdomen that required extensive medical treatment. At the trial court, the court
found for the defendant for several reasons: (1) there was no indication the defendant intended to
shoot the plaintiff (2) defendant was not purposely trying to hit the other youths but, instead, was
shooting at their car (3) the plaintiff failed to prove the defendant intended to make contact with
the any person other than the plaintiff. The trial court concluded that the doctrine of transferred
intent could not apply to create liability for battery upon the plaintiff.

ISSUE: Whether the transferability of intent applies when the defendant intended to put the
other youth in the apprehension of harmful or offensive contact by shooting at their car but
subsequently put another in such harmful apprehension

RULE: When one intends an assault another, and caused a bodily injury to a third person whom
the actor did not intend to put in apprehension of harm, it is still battery actionable by the injured
person.

APPLICATION: Here, the defendant intended the fired shots back at the youths in the car. An
act intended harmful or offensive, or that put someone in the apprehension of such harm
constitutes battery. It is not enough that the defendant wasn’t aiming at the plaintiff, what matter
is the fact that his volitional action put the plaintiff in the apprehension of harm.

CONCLUSION: Therefore, the defendant’s intent to put the other youths in apprehension of a
harmful or offensive contact was sufficient to satisfy the intent requirement for battery against
plaintiff. The case is remanded for additional findings as to whether the bullet that struck the
plaintiff was fired by the defendant and if so, appropriate judgment be enter for the plaintiff.
 McQuiggan v. Boy Scouts of America

FACTS: The plaintiff, a member of the Boy Scouts of America overlooked other scouts playing
a paper clip shooting game. When asked to join, he joined freely, feeling no pressure to
participate. The plaintiff then grabs an elastic band with the intention of actively participating in
the game. Although he does not have a paper clip, he gave the intention of having one with him
and chased the two boys. At some point, while he was being chased; he dropped the band and
stopped playing without communicating this to the other boys. He later felt something in his eye
and when he brushed it off a paper clip dropped to the floor. The plaintiff filed an assault and
battery charge. The trial court granted motion for judgment in favor of the defendant at the end
trial. The plaintiff filed an appeal.

ISSUE: Whether the plaintiff implied consent when he voluntary participated in the paper clip
shooting game barred him from recovering for an eye injury he sustained.

RULE: Voluntary participation and acting in such a way in response to a game as a matter of
law implies consent to the infliction of injury upon that person.

APPLICATION: Here, the plaintiff picked up elastic band and chased the other two boys down
the hallway. By pursuing them (1) he demonstrated his intention to participate in the game (2)
his failure also to communicate his intention to stop playing implies he was still in the game and
subsequently still consented to being shot at thereby, forgoing his right to recover for injuries
sustained during the game.

CONCLUSION: Therefore, the plaintiff’s willful joining in the game, without any notice of
withdrawal from the participation, bars recovery from the defendants.
 Hogan v. Tavzel

FACTS: The defendant infected the plaintiff with genital warts. The defendant knew he was
infected and failed to warn or take precaution against infecting the plaintiff. The plaintiff filed
suit

ISSUE: Whether consent to sexual intercourse is still consent when the defendant knew and
failed to express his condition to the plaintiff thereby is a cause of action in battery

RULE: An act intended to cause harmful or offensive contact to another is battery. Consent
without the knowledge of the other person’s infection with venereal disease vitiates that consent
and would not be a defense to the battery charge if proven.

APPLICATION: Here, the defendant knew he was infected with a sexually transmitted disease
and chose not to inform his partner of his condition. Although there is a certain amount of trust
in a married or in an intimate relationship, it encompasses disclosure of any conditions that may
put your partner in danger. The fraudulent concealment of the infection subjected the person
doing the concealment to be liable for battery.

CONCLUSION: Therefore, a tortfeasor could be held liable for battery for infecting another
with a sexually transmissible disease.
 Richard v. Mangion

FACTS: On the day of the particular altercation that caused the injury, the plaintiff and the
defendant both went to the rope swing some intentions of fighting each other. The defendant
pushed the plaintiff and both boys began fighting at which the defendant had the plaintiff in a
headlock and punched him several times while being punch also by the plaintiff. The defendant
let go of the plaintiff in a headlock and then pushed in a ditched, which now appears to have a
bleeding nose. The plaintiff then attacked the defendant wildly swinging at which the defendant
ducked and then struck the plaintiff in the eye. The punch in the eye later caused a hemorrhaging
in the eye and took two operations and incurred$15,000 medical expenses. The defendant moved
for motion of dismissal and was granted.

ISSUE: Whether the plaintiff voluntary participated in the altercation implied consent and
whether he consented to the level of force used in the fight.

RULE: Consent may be expressed or implied; if implied, it must be determined on the basis of
reasonable appearances. When a person voluntary participates in an altercation, he may not
recover for the injuries which he incurs, unless force in excess of that necessary is used and its
use is not reasonably anticipated. The use of excessive and unanticipated force vitiates the
consent. Peer pressure does not vitiate consent.

APPLICATION: Here, the plaintiff left his house knowing fully that there is going to be a fight
and understood his showing up will demonstrate his willingness to engage in such act. Whether
he did strike the fight blow or not does not matter. His engagement in the fight shows consent
and as such any injuries incur during the fight is at his own risks, thereby not recoverable.

CONCLUSION: Therefore, the plaintiff implied to the defendant he was willing to engage in a
fight and no excessive or unanticipated force was employed by either boy. The trial court the not
erred in finding for the defendant. The decision of the trail court is affirmed.

Consent→ Understanding comes from applying the Objective Test→ meaning what a reasonable
person would think in that setting.
 Slayton v. McDonald

FACTS: The plaintiff and the defendant had an altercation at school at which the defendant
threatened to come to the plaintiff’s house. Later, the defendant noticed the plaintiff approaching
his house at which verbally warn him to go away. The plaintiff refused and the defendant
retrieved his gun in the house and gave more several warnings for the defendant to leave. When
the plaintiff came into the defendant’s house; the defendant called the police. While on the phone
he threatened to shoot the plaintiff if he does not leave and the plaintiff replied he would get up
and beat the plaintiff. The plaintiff had heard the defendant won fights against people larger than
him and can take care of himself. When the plaintiff moved eight more feet into the house, the
defendant stated he will count to three and then shoot, the plaintiff could be heard to count
“one−two−three” then the defendant shot the plaintiff in the knee, causing a severe injury. The
trial court found for the plaintiff had acted reasonably under the circumstances surrounding the
incident. The defendant appeals the case.

ISSUE: Whether the defendant had acted reasonably and had use right amount of force to
defense himself when the plaintiff threatened to beat him.

RULE: For the purpose of assault, resorting to dangerous weapon to repel an attack may be
justifiable in certain cases when the fear of danger of the person attacked is genuine and founded
on facts likely to produce similar emotions in reasonable men (Objective Test)

APPLICATION: Here, the plaintiff refused to leave the house of the defendant after several
warnings and even at the present of a gun still advance towards the plaintiff. The defendant
refusals and as well as his reputation of beating people began than him provides support that he
was capable of beating up the plaintiff and the defendant was justify in shooting the plaintiff in
the knee to prevent further approach.

CONCLUSION: Therefore, the plaintiff used the proper amount of force to stop the defendant
from beating him up.

General rule to self-defense→ See Note.