Monday, August 17, 2015

Can I sue someone for attacking me?

Can I sue someone for attacking me?

By Beau Blackwell

Unwanted touching of another is against the law unless it is in reasonable self-defense.  If you were physically violated, one can always file a police report and try to have the wrongdoer locked up.  But, you may have additional legal options to punish the wrongdoer in a civil court, such as a filing a lawsuit for battery.  

What is the tort of battery?

Battery is the offense of intentionally and voluntarily bringing about an unwanted, injurious or offensive touching of an individual. Dissimilar from the tort of assault, battery consist of a real contact. The contact can be by one person touching another person, or it can be by one person using an object to contact another person, such as a car, bat, or gun.  The essence of the action for battery is not the hostile intent of the aggressor, but rather the absence of consent to the contact on part of the individual being attacked. 5 Fla. Pl. & Pr. Forms § 43:37.  Intent to do harm is not necessary to establish battery. 1 La Coe's Fla.R.Civ.P. Forms R 1.110(754.3) (2014 ed.).  

Consent is an affirmative defense that must be pleaded and established by the defendant.  3A Fla. Jur 2d Assault—Civil Aspects § 11.  For consent to be an effective defense to a claim of battery it must have been given knowingly; consent is vitiated if it is acquired by fraud or concealment. Id.

Demonstrating the offense of battery includes proving both a conduct element and a mental element:
1.      The target must actually have been contacted. “Contact” can mean a wide variety of things. It includes being struck by a weapon or other instrument.
2.      Battery also requires that the defendant intended to perform the act. Both an intent to do the act in question and an intent to do something harmful must be established. 3 Fla. Pl. & Pr. Forms § 22:16

Damages are not always a necessary element in the cause of action in battery.  21 Fla. Prac., Elements of an Action § 1302:1 (2014-2015 ed.).  “Florida courts have cited with approval to Prosser who wrote: ‘Proof of the technical invasion of the integrity of the plaintiff's person by even an entirely harmless, but offensive contact entitles the plaintiff to vindication of the legal right by an award of nominal damages, and the establishment of the tort cause of action entitles the plaintiff also to compensation for the resulting mental disturbance, such as fright, revulsion or humiliation … The element of personal indignity involved always has been given considerable weight. Consequently, the defendant is liable not only for contact which do actual harm, but also for those relatively trivial ones which are merely offensive and insulting ….’” Id.

Million Dollar Battery Verdict

In 2003, at Hooligan's Pub and Oyster Bar, plaintiff Lautery, claimed that she was slashed in the face and neck by a corkscrew brandished by Daniels after she rejected his advances. 2008 WL 3914029 (Fla.Cir.Ct.).  Lautery sued Daniels for battery and intentional infliction of emotional distress. Id.  The plaintiff earlier settled a confidentially claim against Hooligan's. Id. According to plaintiff's counsel, the defendant admitted liability in several pre-trial communications. Id. The defendant pleaded guilty to a crime in relation to this incident and was on probation. Id.
The plaintiff's dermatology expert said that upcoming scar revision surgery would yield unclear results. Id. The surgery would cost between $2,000 and $3,000. Id. The expert added that Lautery could undergo agonizing injections to the scar site two or three times a year in an effort to alter them, but they would still be noticeable the rest of her life. Id. Judge Gerald D. Hubbart awarded the plaintiff $1 million in damages. Id.

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