⚡ 10-Second Rule
Making someone reasonably expect a bad touch is coming right now is itself a wrong.
🧒 ELI-10 Scene
Ravi winds up and fake-punches at Dev's nose, stopping an inch short. Dev flinches hard. No touch ever happens. But for one second, Dev's brain screamed "incoming." That moment — expecting a hit right now — is what the law punishes. Flip it around: if Dev's back was turned and he never saw the fist, there was no scare. No scare, no wrong.
⚖️ Actual Rule
Assault protects the mind, not the body (Restatement (Second) of Torts § 21, paraphrased): the defendant must act meaning either to land a hurtful or offensive touching or to make the victim brace for one right now, and the act must succeed in making the victim actually expect that immediate touching. Apprehension means anticipation of the contact, not fear — a plaintiff confident he could dodge or win the fight is still assaulted (Restatement (Second) of Torts § 24). Apparent ability suffices: pointing a gun the plaintiff believes is loaded is an assault even if it is empty, and a threatening advance within apparent reach qualifies (Western Union Telegraph Co. v. Hill, 150 So. 709 (Ala. Ct. App. 1933)). Words alone generally do not create liability unless, together with other acts or circumstances, they put the plaintiff in reasonable apprehension of imminent contact (Restatement (Second) of Torts § 31); words can also cancel imminence, as with conditional statements postponing any harm to the future. Threats of future contact are not imminent, and the plaintiff must be aware of the threat when it happens. Transferred intent applies: a defendant who intends a battery but misses is liable for assault to anyone put in imminent apprehension, and intent aimed at one victim transfers to another.
ELI-10 translation: The wrong is the expected hit, not fear. It must feel like right now. And the target must see it coming.
🔍 Ask These Questions
- Did the defendant intend a contact or a scare? (Did he mean the hit, or at least mean the flinch?)
- Was the plaintiff put in apprehension of contact? (Did her brain say "incoming," even if she felt brave?)
- Was she aware at that moment? (A threat you never saw is not an assault.)
- Was the threatened contact imminent? ("I'll get you next Tuesday" is too far away.)
- Was there apparent ability? (An unloaded gun still counts if it looks loaded.)
- Do words alone carry it, or cancel it? (Talk needs menacing action behind it; some words un-load the threat.)
- Does transferred intent apply? (A missed punch that scares a bystander still counts against the puncher.)
⚠️ Bar Trap
Exam language: Examiners write a fearless plaintiff — a trained boxer, a larger opponent — or reveal after the fact that the weapon was unloaded, then invite you to reject assault for lack of fear or actual danger. Apprehension is anticipation, not fright, and apparent ability to complete the contact is all the doctrine demands.
ELI-10: Brave people can be assaulted. Empty guns can assault. Ask only whether the target expected a hit right then.
🧪 Question
During a recreational softball game, an outfielder became enraged at a spectator who had heckled him for several innings. Between plays, the outfielder walked up behind the spectator, who was facing the concession stand, and swung a bat toward the back of the spectator's head, deliberately stopping the swing several inches short. The spectator neither saw nor heard the swing and learned of it only two days later, when a friend showed him a video of the incident. Upset by the video, the spectator sued the outfielder for assault.
Will the spectator prevail?
(A) Yes, because the outfielder intended to place the spectator in apprehension of imminent harmful contact. (B) Yes, because viewing the video caused the spectator genuine distress. (C) No, because the bat never made contact with the spectator. (D) No, because the spectator was unaware of the swing at the time it occurred.
Answer: (D). Assault requires that the plaintiff actually be put in imminent apprehension of contact when the act occurs. A plaintiff who perceives the threat only afterward was never in apprehension, so the claim fails regardless of the defendant's intent.
💡 Why the Wrong Answers Are Wrong
- (A) stops at intent, but assault also requires the result: the plaintiff must actually experience imminent apprehension.
- (B) substitutes later distress for contemporaneous apprehension; learning of a threat afterward does not satisfy the element.
- (C) gives the right result for the wrong reason: contact is never required for assault, only expected contact.
- ELI-10: The misconception is thinking a scary act alone is enough. The target must feel the "incoming" in that exact moment.
