Assault battery elements, defenses, and causation

  1. Standard for a Motion for Summary Judgment in Missouri and South Carolina

 

See Rule 56 of South Carolina Rules of Civil Procedure (it’s almost identical to Missouri Supreme Court Rule 74.04).

 

Pye v. Aycock
325 S.C. 426, 480 S.E.2d 455
S.C.App.,1997.

[457] Summary judgment is appropriate when it is clear there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. City of Columbia v. American Civil Liberties Union, 323 S.C. 384, 475 S.E.2d 747 (1996). See Rule 56, SCRCP. In determining whether any triable issues of fact exist, the evidence and all inferences which can be reasonably drawn from the evidence must be viewed in the light most favorable to the nonmoving party. City of Columbia, supra.

 

  1. Elements of Assault and Battery in Missouri and South Carolina

 

Mellen v. Lane
377 S.C. 261, 659 S.E.2d 236
S.C.App.,2008.

[276] An “assault” is an attempt or offer, with force or violence, to inflict bodily harm on another or engage in some offensive conduct.  “[A]n assault occurs when a person has been placed in reasonable fear of bodily harm by the conduct of the defendant.”). The elements of assault are: (1) conduct of the defendant which places the plaintiff, (2) in reasonable fear of bodily harm.   The conduct must be of such nature and made under such circumstances as to affect the mind of a person of ordinary reason and firmness, so as to influence his conduct; or it must appear the person against whom the threat is made was peculiarly susceptible to fear, and the person making the threat knew and took advantage of the fact he could not stand as much as an ordinary person.

[277] “A battery is the actual infliction of any unlawful, unauthorized violence on the person of another, irrespective of its degree; it is unnecessary that the contact be by a blow, as any forcible contact is sufficient.” Generally speaking, a battery is the unlawful touching or striking of another by the aggressor himself or by any substance put in motion by him, done with the intention of bringing about a harmful or offensive contact which is not legally consented to by the other, and not otherwise privileged. It is sometimes defined as any injury done to the person of another in a rude, insolent, or revengeful way.  

Physical injury is not an element of battery. While there must be a touching, any forcible contact, irrespective of its degree, will suffice.

Intent is Not an Essential Element of Assault and Battery.  There is a well recognized distinction between criminal assault and a civil action for an assault and battery. In civil actions, the intent, while pertinent and relevant, is not an essential element. The rule, supported by the weight of authority, is that the defendant's intention does not enter into the case, for, if reasonable fear of bodily harm has been caused by the conduct of the defendant, this is an assault.

  1. Proximate Cause

 

Mellen v. Lane
377 S.C. 261, 659 S.E.2d 236
S.C.App.,2008.

[278-280] “It is apodictic that a plaintiff may only recover for injuries proximately caused by the defendant's [conduct].” Parks v. Characters Night Club, 345 S.C. 484, 491, 548 S.E.2d 605, 609 (Ct.App.2001); Howard v. Riddle, 266 S.C. 149, 151, 221 S.E.2d 865, 865-866 (1976); Crider v. Infinger Transp. Co., 248 S.C. 10, 16, 148 S.E.2d 732, 734-735 (1966). “Proximate cause is the efficient or direct cause of an injury.” McNair v. Rainsford, 330 S.C. 332, 349, 499 S.E.2d 488, 497 (Ct.App.1998). Proximate cause is the immediate cause. See State v. Clary, 222 S.C. 549, 551, 73 S.E.2d 681, 682 (1952) (approving a jury instruction saying proximate cause “is the immediate cause”). An act is the proximate cause if it is “an efficient cause without which the injury would not have resulted to as great an extent and that any other efficient cause is not attributable to the person injured.” S.C. Ins. Co. v. James C. Greene and Co., 290 S.C. 171, 176, 348 S.E.2d 617, 620 (1986) (citing Gray v. Barnes, 244 S.C. 454, 462-463, 137 S.E.2d 594, 598 (1964)).

 “Proximate cause requires proof of both causation in fact and legal cause.” Bishop v. S.C. Dep't of Mental Health, 331 S.C. 79, 88, 502 S.E.2d 78, 83 (1998) (citing Oliver v. S.C. Dep't of Highways and Pub. Transp., 309 S.C. 313, 316, 422 S.E.2d 128, 130 (1992)); Rush v. Blanchard, 310 S.C. 375, 379, 426 S.E.2d 802, 804 (1993); Thomas Sand Co. v. Colonial Pipeline Co., 349 S.C. 402, 408, 563 S.E.2d 109, 112 (Ct.App.2002). Causation in fact is proved by establishing the plaintiff's injury would not have occurred “but for” the defendant's action. Bishop, 331 S.C. at 88, 502 S.E.2d at 83 (citing Oliver, 309 S.C. at 316, 422 S.E.2d at 130; Koester v. Carolina Rental Ctr., Inc., 313 S.C. 490, 493, 443 S.E.2d 392, 394 (1994)); Rush, 310 S.C. at 379, 426 S.E.2d at 804; Thomas Sand Co., 349 S.C. at 408-409, 563 S.E.2d at 112. “Legal cause is proved by establishing foreseeability.” Bishop, 331 S.C. at 88, 502 S.E.2d at 83 (citing *279 Koester, 313 S.C. at 493, 443 S.E.2d at 394); Oliver, 309 S.C. at 316, 422 S.E.2d at 131; Small v. Pioneer Mach., Inc., 329 S.C. 448, 463, 494 S.E.2d 835, 842 (Ct.App.1997).

 “[L]egal cause is ordinarily a question of fact for the jury.” Oliver, 309 S.C. at 317, 422 S.E.2d at 131; Hughes, 269 S.C. at 399, 237 S.E.2d at 757 (stating it is generally for the jury to say whether defendant's action was a concurring, proximate cause of the plaintiff's injuries); Thomas Sand Co., 349 S.C. at 409, 563 S.E.2d at 113; Small, 329 S.C. at 464, 494 S.E.2d at 843 (“Ordinarily, the question of proximate cause is one of fact for the jury and the trial judge's sole function regarding the issue is to inquire whether particular conclusions are the only reasonable inferences that can be drawn from the evidence.”). “In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon.” Rule 52(a), SCRCP. “Once referred, the master or special referee shall exercise all power and authority which a circuit judge sitting without a jury would have in a similar matter.” Rule 53(c), SCRCP. “Only when the evidence is susceptible to only one inference does it become a matter of law for the court.” Oliver, 309 S.C. at 317, 422 S.E.2d at 131; Thomas Sand Co., 349 S.C. at 409, 563 S.E.2d at 113.

 “The touchstone of proximate cause in South Carolina is foreseeability.” Koester, 313 S.C. at 493, 443 S.E.2d at 394 (citing Young v. Tide Craft, 270 S.C. 453, 462, 242 S.E.2d 671, 675 (1978)); Small, 329 S.C. at 463, 494 S.E.2d at 842. “Foreseeability is determined by looking to the natural and probable consequences of the act complained of.” Id.; Bishop, 331 S.C. at 89, 502 S.E.2d at 83; Oliver, 309 S.C. at 316, 422 S.E.2d at 131; Small, 329 S.C. at 463, 494 S.E.2d at 842.

 “The defendant may be held liable for anything which appears to have been a natural and probable consequence of his [actions].” Bramlette v. Charter-Medical-Columbia, 302 S.C. 68, 72, 393 S.E.2d 914, 916 (1990); Greenville Mem'l Auditorium v. Martin, 301 S.C. 242, 245, 391 S.E.2d 546, 548 (1990). “A plaintiff therefore proves legal cause by establishing the injury in question occurred as a natural and probable consequence of the defendant's act.” Small, 329 S.C. at 463, 494 S.E.2d at 843.

*280 Conduct is the proximate cause of an injury if that injury is within the scope of reasonably foreseeable risks of the conduct. Messier v. Adicks, 251 S.C. 268, 271, 161 S.E.2d 845, 846 (1968). “[W]here the cause of plaintiff's injury may be as reasonably attributed to an act for which defendant is not liable as to one for which he is liable, plaintiff has failed to carry the burden of establishing that his injuries were the proximate result of defendant's [conduct].” Id.

“[I]t is not necessary that the actor must have contemplated or could have anticipated the particular event which occurred.” Young, 270 S.C. at 463, 242 S.E.2d at 675-676; Childers v. Gas Lines, Inc., 248 S.C. 316, 325, 149 S.E.2d 761, 765 (1966); Thomas Sand Co., 349 S.C. at 409, 563 S.E.2d at 112-113; Parks, 345 S.C. at 491, 548 S.E.2d at 609. “Foreseeability is not determined from hindsight, but rather from the defendant's perspective at the time of the alleged [action].” Id. at 491, 548 S.E.2d at 609. The defendant cannot be held liable for unpredictable or unexpected consequences. Young, 270 S.C. at 463, 242 S.E.2d at 676 (citing Stone v. Bethea, 251 S.C. 157, 161-162, 161 S.E.2d 171, 173 (1968)); Crolley v. Hutchins, 300 S.C. 355, 357, 387 S.E.2d 716, 717 (Ct.App.1989) ( “Where the injury complained of is not reasonably foreseeable there is no liability.”); Crowley v. Spivey, 285 S.C. 397, 408, 329 S.E.2d 774, 780 (Ct.App.1985). In determining whether a consequence is natural and probable, the defendant's conduct must be viewed in the light of the attendant circumstances. Young, 270 S.C. at 463, 242 S.E.2d at 676 (citing Stone, 251 S.C. at 161-162, 161 S.E.2d at 173); Crolley, 300 S.C. at 357, 387 S.E.2d at 717.

The act, to be the proximate cause, does not need to be the sole cause of the plaintiff's injury. Bishop, 331 S.C. at 89, 502 S.E.2d at 83 (citing Hughes v. Children's Clinic, P.A., 269 S.C. 389, 399, 237 S.E.2d 753, 757 (1977)); Matthews v. Porter, 239 S.C. 620, 627, 124 S.E.2d 321, 325 (1962); Thomas Sand Co., 349 S.C. at 409, 563 S.E.2d at 113. Liability can be imposed on a defendant if his actions, not necessarily the sole cause, are the proximate concurring cause of the injury. Matthews, 239 S.C. at 627, 124 S.E.2d at 325; Thomas Sand Co., 349 S.C. at 409, 563 S.E.2d at 113.

 

 

  1. Self-defense is an affirmative defense in Missouri and South Carolina

 

Zink v. Hile
594 S.W.2d 344
Mo.App. W.D. 1980.

[346] The weight of case authority has long held that self-defense and its offspring, defense of another, are affirmative defenses and must be pled and proven as such. In Atchison v. Procise, 24 S.W.2d 187, 190 (Mo.App.1930), this court said, “The plea of son assault demesne, or of self-defense, is an affirmative one which, if not specifically pleaded, will be deemed waived. It is not raised under the general issue. Brown v. Barr, 184 Mo.App. 451, 456, 171 S.W. 4.” See also Hartley v. Oidtman, 410 S.W.2d 537, 545 (Mo.App.1967): “The plea of self-defense in a civil action for damages for an assault is an affirmative defense, and the burden of proof of such defense rests upon the person asserting it.”

 

State v. Hajek
716 S.W.2d 481
Mo.App. E.D. 1986.

[482] Self-defense is an affirmative, intentional act founded in real or apparently real necessity. State v. Adkins, 537 S.W.2d 246, 249 (Mo.App.1976). In order to claim self-defense, the defendant (a) must not have provoked or been the aggressor in the assault; (b) must have reasonable grounds for the belief that he is faced with immediate danger of serious bodily injury; (c) must not use more force than that which appears reasonably necessary; and (d) must do everything in his power consistent with his own safety to avoid the danger and must retreat if retreat is practicable. State v. Christie, 604 S.W.2d 806, 808 (Mo.App.1980). Further, where a defendant continues or renews the altercation when he had an opportunity to abandon or decline further, he becomes the aggressor, even though he was not at fault in the original struggle. Under such circumstances, self-defense is not justified.

 

 

[457] On November 16, 1992, Pye filed his complaint alleging, among other things, Aycock was negligent, reckless, willful, and wanton in his actions. Aycock, by and through counsel retained by State Farm Fire and Casualty Company (State Farm), his homeowner's insurance carrier, answered with a qualified general denial. He also asserted the following affirmative defenses: sole negligence, contributory negligence, sudden emergency, self defense, and the unconstitutionality of the imposition of punitive damages.

 

Metropolitan Life Ins. Co. v. Fogle
309 S.C. 64, 419 S.E.2d 825
S.C.App.,1992.

[68-69] (the four elements required to establish self-defense are (1) the party must be without fault in bringing on the difficulty; (2) the party must have actually believed he was, or actually been, in imminent danger of losing his life or sustaining serious bodily injury; (3) if the defense is based upon belief of imminent danger, a reasonably prudent man of ordinary firmness and courage would have entertained the same belief and, if the party actually was in imminent danger, the circumstances were such as would warrant a man of ordinary prudence, firmness and courage to strike the fatal blow in order to save himself from serious bodily harm or loss of life, and; (4) the party had no probable means of avoiding the danger of losing his own life or sustaining serious bodily *69 injury than to act as he did in the particular instance. However, a party on his own premises has no duty to retreat before acting in self-defense.)

 

Mcknight v. State
378 S.C. 33, 661 S.E.2d 354
S.C.,2008.

[49] “jury instructions regarding self-defense pose a delicate problem requiring extraordinary caution because the defense admits the accused committed the act but seeks to establish justification or excuse. This is especially true where self-defense is the only defense alleged at trial.”

 

 

  1. Affirmative Defenses Generally in South Carolina and Missouri

 

 

SCRCP 8 (RULE 8 South Carolina Rules of Civil Procedure)

(c) Affirmative Defenses; Reply. In pleading to a preceding pleading, a party shall set forth affirmatively the defenses: accord and satisfaction, arbitration and award, assumption of risk, condonation, contributory negligence, discharge in bankruptcy, duress, fraud, illegality, injury by fellow servant, laches, license, misrepresentation, mistake, payment, plene administravit or the administration of the estate is closed, recrimination, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. When a party has mistakenly designated a defense as a counterclaim or a counterclaim as a defense, the court shall treat the pleading as if there had been a proper designation. A party may file a reply to any of the foregoing affirmative defenses.

 

  1. Damages – Actual (a/k/a “Compensatory”)

 

Mellen v. Lane
377 S.C. 261, 659 S.E.2d 236
S.C.App.,2008.

[287] Actual damages are properly called compensatory damages, meaning to compensate, to make the injured party whole, to put him in the same position he was in prior to the damages received insofar as this is monetarily possible. See Clark v. Cantrell, 339 S.C. 369, 378, 529 S.E.2d 528, 533 (2000). Actual damages are awarded to a litigant in compensation for his actual loss or injury. Laird v. Nationwide Ins. Co., 243 S.C. 388, 396, 134 S.E.2d 206, 210 (1964). Actual damages are such as will compensate the party for injuries suffered or losses sustained. Id. They are such damages as will simply make good or replace the loss caused by the wrong or injury. Actual damages are damages in satisfaction of, or in recompense for, loss or injury sustained. Barnwell v. Barber-Colman Co., 301 S.C. 534, 537, 393 S.E.2d 162, 163 (1989). The goal is to restore the injured party, as nearly as possible through the payment of money, to the same position he was in before the wrongful injury occurred. Clark, 339 S.C. at 378, 529 S.E.2d at 533.

[45] [46] Actual or compensatory damages include compensation for all injuries which are naturally the proximate result of the alleged wrongful conduct of the defendant. See Rogers v. Florence Printing Co., 233 S.C. 567, 578, 106 S.E.2d 258, 264 (1958). The basic measure of actual damages is the amount needed to compensate the plaintiff for the losses proximately caused by the defendant's wrong so that the plaintiff will be in the same position he would have been in if there had been no wrongful injury. See Rogers, 233 S.C. at 578, 106 S.E.2d at 264; Hutchison v. Town of Summerville, 66 S.C. 442, 448, 45 S.E. 8, 10 (1903).

In awarding actual damages in the instant case, the Master expounded: Because I find the evidence as to the assault and battery, the proximate cause, and the nature and extent of damages have been proved by the preponderance of the evidence, I find an award of actual damages is appropriate.

 

 

  1. Damages – Punitives

 

Mellen v. Lane
377 S.C. 261, 659 S.E.2d 236
S.C.App.,2008.

[289-290] [The trier of fact may award punitive damages in a civil assault case.  The trier of fact may award punitive damages in a civil battery case.]

[290] At least three important purposes are served by a punitive damages award: (1) punishment of the defendant's reckless, willful, wanton, or malicious conduct; (2) deterrence of similar future conduct by the defendant or others; and (3) compensation for the reckless or willful invasion of the plaintiff's private rights. Id. The paramount purpose for awarding punitive damages is not to compensate the plaintiff but to punish and set an example for others.

[290] factors relevant to consideration of punitive damages are: (1) the character of the defendant's acts; (2) the nature and extent of the harm to plaintiff which defendant caused or intended to cause; (3) defendant's degree of culpability; (4) the punishment that should be imposed; (5) duration of the conduct; (6) defendant's awareness or concealment; (7) the existence of similar past conduct; (8) likelihood the award will deter the defendant or others from like conduct; (9) whether the award is reasonably related to the harm likely to result from such conduct; and (10) defendant's wealth or ability to pay.