Motor Vehicle Crash Fatalities and Fatality Rates (per Hundred Million Vehicle Miles Traveled), 1899-2009
C. Emotional and Dignitary Harms: The Example of Assault
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The shipowner moors if he thinks the savings thereby achieved to be greater than the damages to be incurred. That’s his opening bid, and it flushes new information into the open: namely, that the shipowner’s willingness to pay to save his vessel (his reserve price, in the parlance of auctions) is greater than what he takes the value of the dock to be.
With this new information, the dockowner, in turn, has the opportunity to unmoor.
That’s a second bid. It too reveals new information about the relative valuations of the assets in question. And the auction need not be over. The shipowner may re-lash the vessel to the dock, and the dockowner may sever the lines again. With each passing round the chance that we will make the right choice as between saving the dock or the ship in the storm rises, even though no market transaction ever takes place. As Ayres and Balkin explain, “[t]he more rounds we add to an internal auction, the more it appears to mimic bargaining between the participants.” Ian Ayres and J.M. Balkin, Legal
Entitlements as Auctions: Property Rules, Liability Rules, and Beyond, 106 YALE L.J.
703 (1996-1997).
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kinds of fright. Prosser described the assault action as recourse for unlawful “touching of the mind”:
The interest in freedom from apprehension of a harmful or offensive contact with the person, as distinguished from the contact itself, is protected by an action for the tort known as assault. No actual contact is necessary to it, and the plaintiff is protected against a purely mental disturbance of this distinctive kind. This action, which developed very early as a form of trespass, is the first recognition of a mental, as distinct from a physical, injury. There is a “touching of the mind, if not of the body.”
W.PAGE KEETONET AL.,PROSSER AND KEETON ON THE LAW OF TORTS § 10, at 43 (5th ed. 1984).
2. Everyday frictions? Even if the action of assault has been recognized at common law for centuries, it has always been hedged in by limits. Not every obnoxious or hurtful touching of the mind gives rise to an assault action. Courts normally do not allow assault remedies for the ordinary insults and frictions that accompany everyday life. In Bollaert v.
Witter, 792 P.2d 465 (Or. App. 1990), for example, an Oregon State appellate court ruled against a party’s claims of assault in a home boundary dispute where an angry neighbor yelled: “let’s duke it out . . . I’m a Vietnam vet” and “I wouldn't be surprised if my wife—if, while you’re working on the fence, my wife took a gun and shot you.”
Similarly, in Groff v. Sw. Beverage Co., Inc., 997 So. 2d 782 (La. 2008), a Louisiana court dismissed the assault claims of an employee who sued his employer for yelling,
“using numerous profanities,” and “hitting the desk with his hand.” These are the sorts of unpleasant encounters that the common law of torts requires people to bear on their own.
3. Threats of future harm? Nor is it sufficient to allege threats of future harm. Consider the opinion in Kijonka v. Seitzinger, written by Judge Richard Posner of the U.S. Court of Appeals for the Seventh Circuit. Appellant Kijonka was a former small-town mayor who during his term had fired the town dog-catcher, one Berle “Peanut” Shoulders, Jr., after reports of corruption and narcotics dealing. Shoulders then stalked Kijonka for some time in a threatening manner. Some time later the two men spotted one another while driving.
“[A]ccording to Shoulders, Kijonka rolled down his car window, gave Shoulders a ‘dirty look,’ and said: ‘You have a nice day and your ass is mine you son of a bitch and I will get you.’” Judge Posner held that the exchange did not constitute an assault:
Ever since the fourteenth century, assault whether civil or criminal has involved (1) a threatening gesture, or an otherwise innocent gesture made threatening by the accompanying words, that (2) creates a reasonable apprehension of an imminent battery. . . . A merely verbal threat of indefinite action in the indefinite future is not an assault. . . . It is missing two elements: gesture and imminence. . . . Kijonka’s rolling down his car window was not a threatening gesture . . . . There was no threatening gesture, nor even a present threat. It’s not as if Kijonka had said, “I have a gun in my glove compartment and I’m going to reach in and get it and shoot you, you son of a bitch.” Even that would have been a threat rather
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than an assault until he actually reached toward the glove compartment. . . .
Shoulders, given his history of stalking Kijonka, may have feared that the day of retribution had arrived (though this is doubtful, given the presence at the scene of a policeman). But a victim’s fear . . . cannot transform a remote threat into an assault.
364 F.3d 645 (7th Cir. 2004). Why should the common law not make such behavior actionable? Is there anything socially valuable in the kind of behavior at issue here?
4. Threats of Distant Harm. Distance in space will vitiate an assault action just as surely as distance in time. The canonical case is Smith v. Newsam, 84 E. R. 722 (K.B. 1673), where the court per Chief Justice Hale rejected a claim of assault in which plaintiff complained that the defendant had shaken “a sword against the plaintiff in a cutlers shop, being on the other side the street.” Mere words or gestures will not constitute an assault absent the imminent apprehension of contact.
5. Conditional Threats. The same principle renders conditional threats inactionable. In the classic English case Tuberville v. Savage, the “evidence to prove a provocation was, that the plaintiff put his hand upon his sword and said, ‘If it were not assize-time, I would not take such language from you.’” Assize-time was when the king’s judges arrived to deliver justice in the English countryside. With the array of royal officials present, it would have been a singularly bad time for one person to attack another. And so the court concluded that the plaintiff’s evidence was insufficient to make out an assault:
the declaration of the plaintiff was that he would not assault him, the judges being in town; and the intention as well as the act makes an assault.
Therefore, if one strike another upon the hand or arm or breast in discourse, it is no assault, there being no intention to assault; but if one, intending to assault, strike at another and miss him, this is an assault: so if he hold up his hand against another in a threatening manner and say nothing, it is an assault.
Tuberville v. Savage, 86 Eng. Rep. 684 (K.B. 1669).
6. The Restatement Approach. The Restatement view is that an actor may be liable for assault to another if (1) the actor either intended to cause a “harmful or offensive contact” to the other person or to a third party, or to cause “imminent apprehension of such contact,” and (2) the other person is “thereby put in such imminent apprehension.” Merely imposing an unreasonable risk of harmful or offensive contacts, without the intent to cause such contacts or imminent
apprehension thereof, may give rise to liability for negligence, but does not constitute the tort of assault. Restatement (Second) of Torts § 21 (1965).
88 Speicher v. Rajitora
766 N.W.2d 649 (Iowa App. 2009)
EISENHAUER,J. Daniel Rajtora and Kendra Speicher are the parents of an eight-year-old
daughter. Although they never married, the parties have resided with one another on various occasions. Daniel appeals a civil domestic abuse protective order issued in favor of Kendra. He argues the district court’s finding he committed domestic abuse assault is not supported by a preponderance of the evidence. He specifically maintains there was insufficient evidence he acted in a manner “intended to place another in fear of
immediate physical contact which will be painful, injurious, insulting, or offensive, coupled with the apparent ability to execute the act.” See Iowa Code §§ 239.2(2), 708.1(2) (2007). . . .
On March 30, 2008, Daniel returned their daughter to Kendra’s residence after a
visitation. Daniel did not see Kendra at any time on March 30, and did not speak to her at the drop-off. Kendra testified she called Daniel about five minutes later using a new cell phone Daniel had just purchased for their daughter. Kendra asked Daniel to prevent their daughter from taking her new cell phone to church or school. Kendra testified Daniel threatened her by replying: “Shut the f* * * up. Don’t worry about it and shut the f* * * up before I come over there and beat both your asses.”
Kendra stated she placed the call to Daniel’s cell phone and he did not say where he was located. However, she believed he had returned to a friend’s house one to two miles away.
At the hearing, Daniel admitted swearing, but denied making a threat. Daniel was at his friend’s house during the call.
Even assuming Daniel made the alleged threat, we are compelled to find insufficient evidence of assault . . . . Assault requires “fear of immediate physical contact” coupled with “the apparent ability to execute” the assault. The record does not establish Daniel’s apparent ability to execute the threat at the time the threat was made. The testimony only established Kendra’s belief Daniel had a future ability to return from a distance and execute the threat.
We find insufficient evidence to support the assault element of domestic abuse assault.
We reverse and remand for dismissal of the protective order.
Note
Torts and domestic abuse. It is one thing to deny a remedy for ordinary everyday frictions, for distant threats, or for medieval bluster. But what about the all-too-ordinary verbal attacks that are characteristic of abusive domestic relations? Do the limits of the assault cause of action prevent the law from dealing with domestic violence? What about stalking? Would a more robust assault action empower otherwise disempowered people to resist private threats or acts of violence? Put bluntly: does tort law do anything about this grave social problem?
So far in this book we have been studying torts arising out of intentionally inflicted harms.
But the great majority of torts cases in the court system are not intentional tort cases at all.
They are unintentionally inflicted harms. In other words, they are accidents. But if a defendant does not intend an injury, ought she be obligated to compensate the plaintiff for it? If so, what kinds of unintentional injuries produce such obligations to
compensate? These are the central questions for the law of unintentional torts, and we turn to them now through the development of the comn law of torts.