Victims of assault and battery have the right to sue their attackers for (money) damages. It is not necessary that the defendant first be convicted in a criminal trial, or even charged with a crime.
As long as the plaintiff suffered damages because of the defendant’s wrongful actions, he or she can file suit.
Damages for assault and battery
Victims of assault and/or battery may be entitled to both compensatory damages and punitive damages. Losses that can be recovered include (but are not limited to):
- Medical bills,
- Psychological counseling,
- Lost wages,
- Lost earning capacity,
- Pain and suffering,
- Loss of enjoyment of life,
- Anxiety, and/or
- Emotional distress or trauma.
What types of acts can I sue for?
Acts that can form the basis of a civil lawsuit for assault and/or battery include (but are not limited to):
- Simple assault,
- Simple battery,
- Battery causing serious bodily injury,
- Assault with a deadly weapon (“ADW”),
- Vehicular assault,
- Sexual assault,
- Sexual battery, or
- Domestic violence.
To help you better understand how to sue for damages for assault and battery, our California personal injury lawyers discuss the following, below:
- 1. What is “assault”?
- 2. What is “battery”?
- 3. Who can sue for assault or battery?
- 4. Can a third party be held responsible?
- 5. Do I need to file criminal charges or can I just file a lawsuit?
- 6. What is the burden of proof in a civil assault and battery lawsuit?
- 7. Other important differences between a criminal and civil trial
- 8. How long do I have to bring a civil lawsuit for assault or battery?
- 9. Can I recover punitive damages?
- 10. What are defenses to civil charges of assault/battery?
- 11. Can my family sue the aggressor for damages?
You may also wish to review our article on How Victims Can Sue for Damages in a California Civil Lawsuit.
California’s “assault law,” Penal Code 240, defines “assault” as an attempt or threat to commit a violent injury on someone else.
In other words, it is the willful and wrongful threat of the use of force. If force is actually used, it is no longer assault it is “battery” (discussed below).
To be liable under California’s assault law, the defendant must also have:
- Been aware that a reasonable person would have believed the threat, and
- Had the ability to apply force to the other person.1
In other words, the threat must have been credible.
Examples of assault:
- During a domestic argument, a man raises his fist and threatens to hit his wife.
- After a professional baseball game, one team’s fans form a circle around a fan from the other team and say they are going to beat him.
- A woman puts her face inches from a co-worker and threatens to “mess her up” if she reports a work indiscretion to her boss.
California’s “battery law,” Penal Code 242, defines “battery” as the willful and unlawful use of force or violence on another person.
The force does not need to be significant in order to constitute a battery.
Examples of battery:
- A woman throws a pot at her husband during an argument.
- A security guard at a nightclub uses excessive force to remove a patron.
- A man slaps his teenage son for coming home late.
- A girl violently rips off someone’s backpack.
Anyone who has been the victim of an unprovoked threat or use of force can sue for damages.
An exception is if the contact was consensual. For instance, striking someone in a martial arts class would not constitute battery unless the force used exceeded what was expected and reasonable.
- Building owners owe visitors a duty of care to keep their premises in a safe condition.
- Employers have a duty to provide a safe workplace.
- Companies that provide security guards have a duty to ensure that guards are adequately trained and supervised.
Moreover, a third party may have insurance that covers a particular situation.
Your personal injury attorney can advise you whether one or more third parties may be legally liable for your injuries.
You may also wish to review our articles on:
- California’s law on negligent hiring, retention or supervision of an employee, and
- California’s respondeat superior law (vicarious employer liability).
A criminal conviction is not required in order for a victim to file a civil lawsuit for assault or battery.
Victims can sue even if charges are never filed or if the defendant is found “not guilty” at trial.
For instance, people may remember that O.J. Simpson was found “not guilty” of murdering his wife, Nicole Brown, and her friend, Ronald Goldman.
But despite his exoneration, the families of the victims sued and won significant damages in a civil trial.2
Three reasons why filing a police report is a good idea
Even though it is not necessary, there are three good reasons why victims of assault and battery may want to file a police report.
- Witnesses are sometimes more likely to cooperate with the police.
- The defendant can’t use the plaintiff’s failure to go to the police to attack the plaintiff’s credibility.
- If the defendant is convicted, the plaintiff can often use it to establish legal liability in the civil suit.
Civil lawsuits are different than criminal trials. Importantly, the defendant does not need to be found guilty “beyond a reasonable doubt.”
Instead, the jurors must simply determine that it is “more likely than not” that the defendant was legally responsible for the plaintiff’s injuries. This is also known as a “preponderance of the evidence.”3
Under the “preponderance of the evidence” standard, if the jury is even 51% convinced the defendant is liable the plaintiff will recover a judgment.
The following chart illustrates some of the key differences between a criminal and a civil trial:
|CIVIL LAWSUIT||CRIMINAL TRIAL|
|Criminal conviction not necessary||Criminal conviction or plea required|
|Victim controls the case||Case is brought by the prosecutor|
|Victim pays own attorneys||No cost to victim|
|9 or 12 jurors can find liability||All 12 jurors must agree on guilt|
|Lower burden of proof||Very high burden of proof|
|Perpetrator must testify if called as witness||Perpetrator not required to testify|
|Pain and suffering damages recoverable||Victim limited to economic restitution|
|Punitive damages available||No punitive damages possible|
|Other parties may also be liable||Only the defendant(s) may be convicted|
In general, California’s statute of limitations to sue for assault and battery is two years from the date of the injury.
However, especially in cases in which the extent of the plaintiff’s injuries is clear, it is often beneficial to file suit earlier, while memories are fresh.
Punitive damages are available in assault and battery cases when the defendant acted with “fraud,” “malice” or “oppression.”4
Generally, these terms mean that the defendant either:
- Injured the plaintiff intentionally, or
- Acted with a conscious disregard of the plaintiff’s rights.
The burden of proof for punitive damages
The right to punitive damages must be established by “clear and convincing evidence.”
California law does not specifically define this term. But it is a higher burden of proof than “preponderance of the evidence.”
In general, it means that the jury must find with a with a high degree of probability that the defendant acted in an especially blameworthy fashion.5
Example:Joseph and Kevin get into a fight during a neighborhood basketball game. Joseph calls Kevin a racial slur and Kevin hits him, breaking his nose. Joseph sues Kevin for assault and battery and asks for punitive damages. The jury does not award them because Kevin was not acting with a disregard for Joseph’s rights.
But… if Kevin had waited outside Joseph’s house later that night and hit him with a baseball bat, the result would likely be different. Kevin would have had time to cool down – but didn’t. In that case the jury could have concluded that Kevin’s actions were intentional and worthy of extra punishment.
The main defenses to civil charges of assault and/or battery include (but are not limited to):
- The defendant did not threaten or use force against the plaintiff.
- The plaintiff initiated or escalated the incident.
- The plaintiff was not scared (or a reasonable person would not have been scared).
- The defendant had no ability to carry out his or her threat.
- The contact was consensual.
In some cases, the victim’s family may be able to sue for damages resulting from assault and battery in California.
The main legal theories under which families can sue are:
- Negligent infliction of emotional distress – if they witnessed the assault.
- Loss of consortium – if the assault resulted in a loss of companionship, moral support and/or intimacy to a spouse or registered domestic partner. or
- Wrongful death and/or a California survival action if the assault/battery resulted in death.