Because in most cases assault and battery exist together, it has become customary in the law to refer to the term "assault and battery" as if it were a single concept or legal unit; actually, however, assault and battery are separate and different legal concepts. Thus, the definitions of assault and battery are in separate provisions of the California Code; assault is defined as an unlawful attempt, coupled with a present ability, to commit a violent injury on the person of another, and battery is defined as any willful and unlawful use of force or violence on the person of another. The statutory definitions are substantially the same as the common-law definitions. It is not unusual that the two offenses are committed almost simultaneously, that is, an assault followed immediately by a battery. The latter includes and implies an assault since there can be no battery without an assault. Battery is in fact a consummated assault. But an assault itself does not include battery; assault is merely an attempt to commit battery.

Civil liability for an assault and battery is not limited to the direct perpetrator of the act charged; it extends to any person who by any means encourages or incites that act or aids and abets it.

Verbal encouragement to commit assault with a deadly weapon, in violation of the Penal Code provision prohibiting solicitation of another to commit an assault with a deadly weapon, is affirmative conduct sufficient, as a matter of law, to impose civil liability for damages ensuing from the assault. A defendant may be liable for assault and battery where he or she assisted another in preparing an assault on the plaintiff. Whether a minor is capable of the intent necessary to establish battery is a question of fact.  However, a married person is not liable for any injury or damage caused by his or her spouse except in cases where he or she would be liable therefor if the marriage did not exist.

Under the doctrine of respondeat superior, an employer is liable for an assault or an assault and battery committed by an employee in the scope of his or her employment. Similarly, when an employee of a corporation commits an assault and battery by using excessive force in attempting to eject a trespasser from the corporation's property, both corporation and employee are liable. A principal cannot, however, be held responsible to one who has been harmed if the principal's agent has committed no assault or battery and the only grounds of action are an alleged assault and battery by the agent.

To make a prima facie case for battery by a police officer, plaintiff must demonstrate the unreasonableness of the force used. The plaintiff must also prove that the unreasonable force caused injury, damages, loss or harm to plaintiff.

If you feel you have been the victim of an assault and battery please call the Law Office of Harold D. Thompson for a free case evaluation.