People often conflate assault and battery. Policy exclusions typically refer to “Assault and Battery” in the conjunctive, when, in fact, it would be more appropriate to make the acts disjunctive. Under Missouri law, assault and battery are intentional torts, and the elements necessary to plead and prove each cause of action are distinct.
Assault is any unlawful offer or attempt to injure another with the apparent present ability to effectuate the attempt, under circumstances creating a fear of imminent peril. Assault is sometimes described as “an inchoate battery.” To plead an assault, the petitioner must allege: (1) defendant’s intent to cause bodily harm or offensive contact, or apprehension of either; (2) conduct of the defendant indicating such intent, or (3) apprehension of bodily harm or offensive contact on the part of the plaintiff caused by defendant’s conduct.
To recover damages for a Battery, Plaintiff must plead and prove an “intended, offensive bodily contact with another person. Usually when someone is hit or beaten, in the common everyday vernacular they would say they had been assaulted. However, under Missouri law, a battery has occurred. Of course, no one typically says “I was battered.”
In Gillispie v. Lawson, No. 4:20-CV-1598-MTS, 2023 WL 2187472, at *1 (E.D. Mo. Feb. 23, 2023) the case sets forth an interesting and somewhat unusual fact pattern, as well as an unusual treatment of the issue of damages at a default hearing.
Plaintiff and defendant were cellmates in a Missouri Penitentiary. Plaintiff alleged two torts which the judge had to describe and analyze. The first tort was plead as follows:
Plaintiff alleges he and Defendant were in their shared prison cell when Defendant began acting irrationally, banging his head on the cell bars and walls, and cutting himself with a razor. Defendant refused to allow Plaintiff to leave the cell and “threaten[ed] Plaintiff with grave bodily harm and death.” Plaintiff “repeatedly screamed in fear and pleaded … to get [ ] out of the cell and away from Defendant. Defendant “continued threatening Plaintiff and injuring himself and vowed grave bodily harm and death to anyone who attempted to rescue Plaintiff or remove either of them from the cell and brandished the razor to emphasize the point.
You can decide whether these facts constitute an assault or a battery?
The second tort was pled as follows:
Defendant battered Plaintiff until he was bloody and unconscious, then jumped up and down on him, kicked him in the head, and ripped off his pants and anally raped him while he remained unconscious.
The interesting part of this case is that Plaintiff obtained an interlocutory default judgment against defendant, and at the same time testified concerning various physical and emotional injuries, seeking $2,000,000.00 in damages. Many judges would have rubber stamped that request, but the Judge said he was unable to award damages unless an evidentiary hearing was held where Plaintiff would be required to substantiate his damages. The Judge pointed out that while he was sure Plaintiff sustained physical and emotional injuries, “Plaintiff’s testimony does not establish what these injuries are, how they can be quantified, and whether there is supporting documentation to show the amount claimed is reasonable. Therefore, the Court will hold an evidentiary hearing to determine the damages amount to which Plaintiff is entitled.”