California Civil Jury Instructions (CACI) (2017)

1301. Assault—Essential Factual Elements

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1301.Assault—Essential Factual Elements
[Name of plaintiff] claims that [name of defendant] assaulted [him/her]. To
establish this claim, [name of plaintiff] must prove all of the following:
[1. That [name of defendant] acted, intending to cause harmful [or
offensive] contact;
2. That [name of plaintiff] reasonably believed that [he/she] was
about to be touched in a harmful [or an offensive] manner;]
2. [or]
[1. That [name of defendant] threatened to touch [name of plaintiff] in
a harmful [or an offensive] manner;
2. That it reasonably appeared to [name of plaintiff] that [name of
defendant] was about to carry out the threat;]
3. That [name of plaintiff] did not consent to [name of defendant]’s
conduct;
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
[A touching is offensive if it offends a reasonable sense of personal
dignity.]
[Words alone do not amount to an assault.]
New September 2003; Revised October 2004, June 2005
Directions for Use
For a definition of “intent,” see CACI No. 1320, Intent. The last bracketed
sentence should be read in cases in which there is a dispute as to whether the
defendant’s conduct involved more than words.
Sources and Authority
• “The essential elements of a cause of action for assault are: (1) defendant acted
with intent to cause harmful or offensive contact, or threatened to touch plaintiff
in a harmful or offensive manner; (2) plaintiff reasonably believed she was
about to be touched in a harmful or offensive manner or it reasonably appeared
to plaintiff that defendant was about to carry out the threat; (3) plaintiff did not
consent to defendant’s conduct; (4) plaintiff was harmed; and (5) defendant’s
conduct was a substantial factor in causing plaintiff’s harm.” (So v. Shin (2013)
212 Cal.App.4th 652, 668−669 [151 Cal.Rptr.3d 257] [citing this instruction].)
• “ ‘Generally speaking, an assault is a demonstration of an unlawful intent by
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one person to inflict immediate injury on the person of another then present.’ ”
(Plotnik v. Meihaus (2012) 208 Cal. App. 4th 1590, 1603–1604 [146
Cal.Rptr.3d 585].)
• “A civil action for assault is based upon an invasion of the right of a person to
live without being put in fear of personal harm.” (Lowry v. Standard Oil Co. of
California (1944) 63 Cal.App.2d 1, 6–7 [146 P.2d 57], internal citation
omitted.)
• “The tort of assault is complete when the anticipation of harm occurs.”
(Kiseskey v. Carpenters’ Trust for Southern California (1983) 144 Cal.App.3d
222, 232 [192 Cal.Rptr 492].)
“Furthermore, . . . ‘while apprehension of that contact is the basis of assault
[citation,] [m]ere words, however threatening, will not amount to an assault.
[Citations.]’ ” (Plotnik,supra, 208 Cal.App.4th at p. 1604.)
• Restatement Second of Torts, section 21 provides:
(1) An actor is subject to liability to another for assault if
(a) he acts intending to cause a harmful or offensive contact
with the person of the other or a third person, or an imminent
apprehension of such a contact, and
(b) the other is thereby put in such imminent apprehension.
(2) An action which is not done with the intention stated in
Subsection (1, a) does not make the actor liable to the other for an
apprehension caused thereby although the act involves an
unreasonable risk of causing it and, therefore, would be negligent or
reckless if the risk threatened bodily harm.
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 381–416
Chin et al., California Practice Guide: Employment Litigation, Ch.5-I, Assault And
Battery, ¶ 5:656 et seq. (The Rutter Group)
3 Levy et al., California Torts, Ch. 41, Assault and Battery, § 41.01[4] (Matthew
Bender)
6 California Forms of Pleading and Practice, Ch. 58, Assault and Battery, § 58.15
(Matthew Bender)
2 California Points and Authorities, Ch. 21, Assault and Battery, § 21.20 (Matthew
Bender)
1 California Civil Practice: Torts §§ 12:3–12:6 (Thomson Reuters West)
CACI No. 1301 ASSAULT AND BATTERY
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