Elements of a Civil Assault Claim

In Florida, civil assault is an intentional tort distinct from battery. It is not about physical contact, but the creation of a reasonable fear that such contact is about to occur. The definition is codified in Florida Statute § 784.011(1) and requires the plaintiff to prove five key elements.

1. An Intentional, Unlawful Threat

The defendant must have intentionally made a threat through words, actions, or both. The act cannot be accidental or negligent. While words alone are often insufficient, they become actionable when paired with a physical act or gesture that gives the threat credibility.

2. To Do Violence to Another

The threat must be to commit "violence," which in tort law includes any harmful or offensive physical contact. This can range from a threat to punch someone to a threat to spit on them. The standard is what a reasonable person would find offensive.

3. Apparent Ability to Act

The defendant must have the present, apparent ability to carry out the threat. This is an objective standard based on what a reasonable person in the victim's position would believe. For example, pointing an unloaded gun that the victim believes is loaded satisfies this element.

4. Creation of a Well-Founded Fear

The threat must cause the victim to experience a "well-founded fear" or reasonable apprehension of imminent violence. The standard is "apprehension," not necessarily "fear." A courageous person can still be assaulted if they reasonably apprehend an imminent battery.

5. Imminent Violence

The threatened violence must be imminent, meaning it is about to happen without significant delay. A threat of future harm (e.g., "I'll get you next week") does not constitute a civil assault.

Assault vs. Battery: A Key Distinction
Assault is the threat that creates apprehension (e.g., swinging a fist and missing).
Battery is the actual, non-consensual physical contact (e.g., the fist making contact). They are separate torts, though they often occur together.

Civil vs. Criminal Assault

A single act of assault can lead to two separate legal actions: a private civil lawsuit and a public criminal prosecution. They have different goals, standards of proof, and potential outcomes.

Purpose: A civil claim seeks monetary compensation for the victim. A criminal case seeks to punish the offender on behalf of the state.
Burden of Proof: In a civil case, the plaintiff must prove their case by a "preponderance of the evidence" (more likely than not). In a criminal case, the prosecutor must prove guilt "beyond a reasonable doubt."
Outcome: A successful civil suit results in a monetary award (damages) for the plaintiff. A criminal conviction can result in fines, probation, or imprisonment for the defendant.

Because of the lower burden of proof, a defendant can be found liable for assault in a civil court even if they were acquitted in criminal court for the same act.

Recoverable Damages

A successful plaintiff in a civil assault case can recover several types of monetary damages.

Compensatory Damages

Economic Damages: Tangible financial losses, such as medical bills for therapy or counseling, and lost wages if the trauma caused the victim to miss work.
Non-Economic Damages: Intangible harms, which are often the most significant part of an assault claim. This includes compensation for emotional distress, mental anguish, fear, anxiety, and loss of enjoyment of life.

The "Impact Rule" Exception: In most negligence cases, Florida's "Impact Rule" bars recovery for purely emotional distress without a physical impact. However, this rule does not apply to intentional torts like assault, allowing victims to be compensated for purely psychological harm.

Punitive Damages

Awarded to punish the defendant for malicious or egregious conduct and to deter similar acts in the future. Under Fla. Stat. § 768.72, a plaintiff must show by "clear and convincing evidence" that the defendant was guilty of intentional misconduct. Punitive damages are generally capped, but the cap may be lifted if there was a specific intent to harm.

Defenses to Civil Assault

A defendant can raise affirmative defenses that, if proven, can defeat an assault claim even if the elements are met.

Justifiable Use of Force

This is the most common defense. A person is privileged to use or threaten a reasonable and proportional amount of force to defend against the imminent use of unlawful force.

Florida's "Stand Your Ground" Law (Fla. Stat. § 776.012): A person in a place they have a right to be has no duty to retreat and can meet force with force. This law provides not just a defense at trial but potential immunity from civil suit, which can lead to a pre-trial dismissal of the case.
Defense of Others: The same principles apply when defending another person from imminent harm.
Defense of Property: Reasonable, non-deadly force may be used to protect property. Deadly force is generally prohibited for the sole purpose of defending property.

Consent

If the plaintiff voluntarily agreed to the conduct, it may negate the assault claim. This defense is most applicable to activities where the threat of contact is inherent, such as in contact sports or mutual combat. However, consent is generally not a valid defense to a threat of serious violence, as public policy prohibits consenting to such acts.

Special Contexts and Considerations

The application of assault law can be more complex in specific situations.

Assault in the Workplace

Generally, workers' compensation is the "exclusive remedy" for on-the-job injuries, barring lawsuits against the employer. However, an employer may still be sued for its own negligent hiring, retention, or supervision if it knew or should have known an employee was dangerous. The victim can almost always sue the individual assailant directly.

Claims Against Law Enforcement

Claims of assault against police are typically framed as "excessive force." Officers are protected by qualified immunity, a very high legal standard that shields them from liability unless their conduct violates a "clearly established" right. This makes such cases very difficult for plaintiffs to win.

Negligent Security

If an assault is committed by a third party on someone else's property (e.g., an apartment complex), the property owner may be liable for negligent security if they failed to take reasonable measures to protect against foreseeable crime. The 2023 tort reforms now require juries in these cases to apportion fault to the criminal attacker, which will likely reduce the property owner's share of liability.

Assault in Florida