PastPaperHero | Intentional torts

Learning Outcomes

This article explains assault as an intentional tort tested on the MBE, including:

Identifying and explaining the elements required to establish assault, with emphasis on act, intent, reasonable apprehension, imminence, and causation.
Distinguishing assault from battery and other intentional torts, and recognizing when a single fact pattern supports both assault and battery claims.
Analyzing reasonable apprehension, imminence, and apparent ability using common MBE hypotheticals such as unloaded guns, conditional threats, and long-distance communications.
Explaining how intent, including purpose, knowledge, and transferred intent between persons and torts, satisfies the mental element for assault questions.
Identifying and evaluating common defenses—consent, self-defense, defense of others, and defense of property—and determining when those defenses fail on MBE-style answer choices.
Applying assault principles to structured multiple-choice fact patterns, spotting typical distractors (mere words, future threats, lack of awareness), and selecting the best answer under time pressure.
Reinforcing issue-spotting habits and rule statements that can be quickly written or recalled during bar exam practice and timed simulations.

MBE Syllabus

For the MBE, you are required to understand the law of intentional torts, including assault, with a focus on the following syllabus points:

Recognize the elements required to prove assault as an intentional tort.
Distinguish assault from battery and other intentional torts.
Explain the significance of reasonable apprehension, imminence, and apparent ability.
Identify common defenses to assault, including consent and self-defense.
Apply assault concepts to complex fact patterns and mixed tort scenarios.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

Which of the following is NOT required to establish assault?
1. Intent
2. Reasonable apprehension of imminent harmful or offensive contact
3. Actual physical contact
4. Causation
A defendant points an unloaded gun at a plaintiff, who reasonably believes it is loaded. Is this assault?
1. Yes, because the plaintiff’s apprehension is reasonable.
2. No, because the gun is unloaded.
3. No, because there is no intent.
4. Yes, but only if the defendant shouts a threat.
Which defense is LEAST likely to succeed in an action for assault?
1. Consent
2. Self-defense
3. Mistake as to the plaintiff’s identity
4. Defense of property

Introduction

Assault is a core intentional tort tested on the MBE. It focuses on the defendant’s act causing the claimant (plaintiff) to reasonably apprehend imminent harmful or offensive contact. Unlike battery, assault does not require any physical contact. The key questions are:

Did the defendant engage in a volitional act?
Did that act cause the plaintiff to anticipate an immediate harmful or offensive touching?
Did the defendant act with the requisite intent?

Understanding these elements and the common exam traps—especially the distinction between apprehension versus fear, and imminent versus future harm—is essential.

Key Term: Assault
The intentional tort where the defendant’s act causes the plaintiff to reasonably apprehend an imminent harmful or offensive bodily contact, even if no contact occurs.

Elements of Assault

To prove assault, the plaintiff must establish:

An act by the defendant creating a reasonable apprehension in the plaintiff of imminent harmful or offensive contact.
Intent by the defendant to cause such apprehension or to cause the contact itself.
Causation – the defendant’s act must cause the apprehension.

Each element is tested frequently.

Act: There must be a voluntary movement by the defendant (e.g., raising a fist, pointing a gun, rushing toward the plaintiff). Reflexive movements do not qualify.
Harmful or offensive contact: The anticipated contact must be either physically harmful (causing pain or injury) or offensive to a reasonable person’s sense of dignity.
No contact required: If contact actually occurs, the tort is usually battery; but the attempted or threatened contact can still support a separate assault claim.

Key Term: Bodily Contact (for assault)
The anticipated harmful or offensive touching with the plaintiff’s body or anything closely connected to it (such as clothing, a bag, or an object in hand).

Reasonable Apprehension

The plaintiff must actually anticipate imminent contact, and this anticipation must be reasonable in light of the circumstances.

Key Term: Reasonable Apprehension
The plaintiff’s expectation of imminent harmful or offensive contact, judged by whether a reasonable person in the plaintiff’s position would anticipate such contact.

Key points:

Apprehension is expectation, not necessarily fear. A person can be brave, unafraid, and still apprehend that a blow is about to land. The focus is on whether the plaintiff expects imminent contact, not whether they are subjectively frightened.
Objective standard. The plaintiff’s apprehension must be reasonable to a person of ordinary sensibilities. However, if the defendant knows of a particular vulnerability or unusual fear and exploits it, seemingly minor conduct may still create reasonable apprehension.
Awareness is required. For tort assault (as tested on the MBE), the plaintiff must be aware of the defendant’s act at the time. If the plaintiff is asleep or unconscious, there is no assault (though there may be a battery if contact occurs).

Key Term: Apparent Ability
The defendant’s conduct must make it seem to a reasonable person that the defendant can carry out the threatened contact at once, even if the defendant in fact lacks that ability.

The defendant’s apparent ability to cause the contact is enough. The classic example: pointing an unloaded gun at someone who reasonably believes it is loaded. The plaintiff’s apprehension is still reasonable.
The plaintiff does not need to know the defendant’s identity. A masked assailant can commit assault; what matters is the anticipated contact, not who is behind it.

Imminence

The threatened contact must be imminent—expected without significant delay.

Key Term: Imminence
The requirement that the threatened harmful or offensive contact must be expected to occur without significant delay; a threat of future harm is not enough.

No assault where the threat is clearly about the future:
“I’m going to break your arm next week” is not an assault.
Similarly, “If you come back tomorrow, I’ll hit you” does not involve imminent contact; the condition itself pushes the contact to a later time.
However, conditional threats can be sufficient when the condition does not postpone the harm, but instead demands immediate compliance under threat of immediate contact.

Key Term: Conditional Threat
A threat phrased in conditional terms; it constitutes assault if a reasonable person would believe that harmful or offensive contact will occur immediately if the condition is not met.

Example: A robber points a gun at a victim and says, “Your money or your life.” The harm is immediate if the victim does not comply; this is an assault.

The MBE often tests non-imminent scenarios: threats made by phone from far away, or threats involving time to comply, do not satisfy imminence.

Intent

The defendant must act with the required mental state.

Key Term: Intent (for assault)
The defendant either desires to cause the plaintiff’s apprehension of imminent harmful or offensive contact, or knows with substantial certainty that such apprehension (or the contact itself) will result from their act.

Two main routes to intent:

Intent to cause apprehension. The defendant wants the plaintiff to anticipate a harmful/offensive touching (e.g., swinging a fist to scare someone).
Intent to cause contact (battery). Even if the defendant did not care whether the plaintiff was apprehensive, intending the contact itself is enough if apprehension occurs.

This is where transferred intent comes in.

Key Term: Transferred Intent
The principle that intent to commit certain intentional torts (including assault and battery) or to affect one person can satisfy the intent element for assault against a different person.

Transferred intent on the MBE typically works in two ways:

Between persons: A intends to scare B by swinging a bat at him. B ducks, and C, standing nearby, reasonably apprehends being hit. Even though A did not know C was there, A’s intent to assault B transfers to C.
Between torts: A intends to batter B by throwing a rock, but misses; B only apprehends the rock and is not hit. The intent to cause contact can satisfy the intent for assault.

Transferred intent applies among the traditional “trespass” torts: assault, battery, false imprisonment, trespass to land, and trespass to chattels.

Causation

The defendant’s act must be the direct or indirect cause of the plaintiff’s apprehension.

Key Term: Causation (intentional torts)
The requirement that the defendant’s act, or a force set in motion by that act, is a substantial factor in bringing about the plaintiff’s apprehension of imminent harmful or offensive contact.

Key points:

The defendant need not personally deliver the threat; it is enough that the defendant sets things in motion that foreseeably cause the apprehension.
The involvement of third parties does not break causation if the defendant’s act was a substantial factor in creating the apprehension.

Mere Words and the “Overt Act” Requirement

Words alone, no matter how hostile, are usually insufficient to constitute assault.

Key Term: Mere Words Rule
Verbal threats, without more, generally do not create a reasonable apprehension of imminent harmful or offensive contact and therefore do not constitute assault.

An overt act is almost always required—something like advancing with raised fists, pulling back a chair as if to strike, or moving toward the plaintiff with a weapon.
Words can, however:
- Support the assault when coupled with an act (“I’m going to hit you right now” while raising a fist).
- Negate an apparent threat:
  If someone shakes a fist but says, “If I weren’t such a good person, I’d hit you,” the words make it unreasonable to expect immediate contact; no assault.

Distinguishing Assault from Battery

Assault and battery are closely related but distinct.

Key Term: Battery
The intentional tort involving harmful or offensive physical contact with the plaintiff’s person (or something closely connected to it), caused by the defendant’s act and intent.

Key contrasts:

Assault protects the plaintiff’s interest in freedom from apprehension of imminent contact.
Battery protects the plaintiff’s interest in bodily integrity (freedom from actual contact).

Consequences:

You can have assault without battery (swing and miss, but plaintiff sees it).
You can have battery without assault (plaintiff is struck from behind or while asleep).
A single incident can produce both torts (plaintiff sees the punch coming and is then hit).

On the MBE, do not assume that because a contact occurred, assault disappears. Both claims may be valid.

Defenses to Assault

Common defenses include consent, self-defense, defense of others, and defense of property. These parallel defenses to battery but are applied to threatened, rather than actual, contact.

Key Term: Consent (defense)
Voluntary agreement—express or implied—to conduct that would otherwise be tortious, within the scope of that agreement.

Express consent: The plaintiff explicitly agrees (e.g., signing a waiver for a medical procedure).
Implied consent: Inferred from custom or conduct (e.g., participating in a contact sport).
Consent is limited by scope. Agreeing to ordinary roughness in a football game does not extend to intentional conduct far outside the rules (e.g., ripping off a helmet and elbowing a player in the head).
Fraud, duress, or lack of capacity can vitiate consent.

Self-Defense

Key Term: Self-Defense
A defendant may use reasonable force to protect against a reasonable belief of imminent unlawful force against themselves.

The defendant must have a reasonable belief that they are about to be subjected to unlawful force.
The force used must be proportionate to the threatened harm.
Reasonable mistakes are permitted: if the defendant reasonably but mistakenly believes an attack is imminent, self-defense can still apply.
Deadly force is justified only in response to a reasonable belief of an imminent threat of serious bodily harm or death; using deadly force merely in response to a non-deadly threat can defeat the defense.

Self-defense can defeat an assault claim when the defendant’s threatening act is reasonably necessary to deter an imminent attack.

Defense of Others

Key Term: Defense of Others
A defendant may use reasonable force to protect another person if the defendant reasonably believes that person could use self-defense.

Most jurisdictions allow reasonable mistakes; if the defendant reasonably believes intervention is necessary, the defense can apply even if appearances are wrong.

Defense of Property

Key Term: Defense of Property
A defendant may use reasonable, non-deadly force to prevent or terminate another’s unlawful interference with real or personal property.

The force must be proportionate and used immediately after or during the interference.
Deadly force may not be used solely to protect property. Threatening deadly force (e.g., pointing a loaded gun) to prevent a mere trespass typically defeats the defense and can itself be an assault.

Damages for Assault

Although assault often involves no physical contact, damages can still be recovered.

Key Term: Nominal Damages
A small monetary award available when a tort is established but no substantial actual harm is proven.

For assault:

Proof of actual harm is not required; nominal damages are available once the tort is established.
If the assault causes physical injury (e.g., the plaintiff jumps back in fear and sprains an ankle), the plaintiff may recover compensatory damages for that harm.
Punitive damages may be awarded where the defendant acted maliciously or outrageously (for example, repeated, deliberate threats with weapons).

Worked Example 1.1

A, angry at B, raises a fist and moves quickly towards B, stopping just short of contact. B believes A is about to hit him and recoils in fear. Is A liable for assault?

Answer:
Yes. A’s volitional act (raising a fist and moving toward B) causes B to reasonably apprehend imminent harmful contact. A intends at least to cause apprehension, and A’s conduct is the cause of B’s apprehension. All elements of assault are satisfied.

Worked Example 1.2

C points a toy gun at D, who believes it is real and fears being shot. C knows the gun is fake. Is C liable for assault?

Answer:
Yes. D reasonably apprehends imminent harmful contact because a reasonable person in D’s position would think the gun is real. C’s apparent ability to inflict harm is sufficient, even though there is no actual ability. C intends at least to cause apprehension, so assault is established.

Worked Example 1.3

E quietly walks up behind F with a raised bat, intending to hit F. F never sees E and is struck on the head. Is there an assault?

Answer:
No assault, but there is a battery. F was never aware of E’s act and therefore never apprehended imminent contact. Assault requires awareness. However, E intentionally caused harmful contact, so E is liable for battery.

Worked Example 1.4

G, standing across the street, shakes his fist at H and shouts, “In two weeks, I’m going to break your jaw!” H is frightened. Has G committed an assault?

Answer:
No. Although H is afraid, the threat is explicitly about future harm and not imminent contact. There is no reasonable apprehension of an immediate harmful or offensive touching, so the imminence requirement is not met.

Worked Example 1.5

J believes K is about to stab him. To ward K off, J raises a heavy stick and shouts, “Back away or I’ll hit you right now!” K sues J for assault. Can J successfully assert self-defense?

Answer:
Likely yes. J reasonably believes he faces an imminent unlawful attack and uses a threat of force proportionate to the perceived danger. J’s conduct would otherwise constitute an assault, but the privilege of self-defense applies and defeats liability.

Exam Warning

On the MBE, physical contact is not required for assault. Do not confuse assault with battery. Focus on:

Whether the plaintiff was aware of the defendant’s act.

Whether the plaintiff reasonably expected imminent contact (not just eventual harm).

Whether there was apparent ability to carry out the threat.

Whether mere words were accompanied by an overt act.

Also be careful not to import criminal-law definitions of assault that treat “attempted battery” as assault. For torts on the MBE, awareness and apprehension are required.

Revision Tip

If the plaintiff is unaware of the defendant’s act at the time, there is no assault. Apprehension must be contemporaneous with the act. When in doubt, ask:

Did the plaintiff see or otherwise perceive the threatening conduct?

Would a reasonable person in that situation anticipate an immediate harmful or offensive contact?

Key Point Checklist

This article has covered the following key knowledge points:

Assault is the intentional tort of causing reasonable apprehension of imminent harmful or offensive contact.
No physical contact is required for assault; that is the domain of battery.
The plaintiff’s apprehension must be both actual and reasonable, and of an imminent contact.
The defendant’s apparent ability to carry out the threat is sufficient; actual ability is not required.
Mere words alone generally do not constitute assault; an overt act is usually needed.
Threats of future harm (or purely future conditional threats) do not satisfy the requirement of imminence.
Intent may be to cause apprehension or to cause contact itself; transferred intent can satisfy the intent element.
Causation is satisfied if the defendant’s act, or a force set in motion by it, is a substantial factor in creating the apprehension.
Defenses to assault include consent, self-defense, defense of others, and limited defense of property; deadly force is not justified solely to protect property.
Nominal damages are available even without actual harm; compensatory and punitive damages may be awarded where appropriate.

Key Terms and Concepts

Assault
Bodily Contact (for assault)
Reasonable Apprehension
Apparent Ability
Imminence
Conditional Threat
Intent (for assault)
Transferred Intent
Causation (intentional torts)
Mere Words Rule
Battery
Consent (defense)
Self-Defense
Defense of Others
Defense of Property
Nominal Damages

Intentional torts - Assault