Copyright 1965, American Law Institute
§ 22 ATTEMPT UNKNOWN TO OTHER
An attempt to inflict a harmful or offensive contact or to cause
an apprehension of such contact does not make the actor liable for an assault
if the other does not become aware of the attempt before it is terminated.
COMMENTS & ILLUSTRATIONS: Comment:
a. Subsequent knowledge of actor's effort. The rule stated in § 21 deals with liability imposed to protect the actor's interest in freedom from apprehension of immediate and harmful or offensive contacts. It is, therefore, necessary not only that the act should be done with the intention stated in that Section but that it should actually have put the plaintiff in apprehension of an immediate contact. Therefore, the defendant is not liable if his efforts to inflict the bodily contact have been abandoned or frustrated before the other is aware of them, since in such case the other is not put in the required apprehension. This is true although before abandonment or frustration the actor's efforts had gone so far that, had the other been aware of them, he would have been put in immediate apprehension of a bodily contact. But, although an act done with the intention stated in § 21 (1, a) may fail of its purpose because of the other's ignorance of its commission, such act may none the less cause illness or some other form of bodily harm through the shock to which the other is subjected by his subsequent discovery of the peril in which he had been put by the actor's contact. Whether the actor is liable for such an illness depends upon whether an illness so resulting is regarded as a legal consequence of the defendant's wrongful contact, as to which see § 870. So too, an act which, although intended only to put another in apprehension by mischance inflicts a harmful or offensive bodily contact upon him may make the actor liable for such contact under the rule stated in §§ 13 and 18, since the actor is liable for such a contact even though his intention was only to put the other in apprehension of it.
b. The rule here stated differs from that applied in many criminal cases under statutes which define the crime of assault to include any attempted battery. Under such statutes the actor may be criminally but not civilly liable for assault.
1. A, intending to frighten B, discharges a pistol behind his ear. B, who is stone deaf, does not hear the pistol, and does not discover what has happened until later. A is not liable to B.
2. A, standing behind B, points a pistol at him. C overpowers A before
he can shoot. B, hearing the noise turns around and for the first time
realizes the danger to which he had been subjected. A is not liable to
REPORTERS NOTES: The Title of this Section has been changed from the first Restatement, and its language has been broadened, to include the case in which the attempt is neither frustrated nor abandoned, but is merely terminated, as in Illustration 1. No other change in substance is intended.
Illustration 2 is based on State v. Barry, 45 Mont. 598, 124 P. 775, 41 L.R.A. N.S. 181 (1912). To the contrary are State v. Baker, 20 R.I. 275, 38 A. 653, 78 Am. St. Rep. 863 (1897); People v. Pape, 66 Cal. 366, 5 P. 621 (1885); and see People v. Lilley, 43 Mich. 521, 5 N.W. 982 (1880). These cases are to be explained as involving criminal, rather than civil, assault in jurisdictions in which the crime is defined as an attempted battery. This is an aberration to which legislatures have been prone. For example, see Cal. Penal Code, § 240: "An assault is an unlawful attempt, coupled with a present ability, to commit a violent injury upon the person of another." See Notes, 57 U. Pa. L. Rev. 249 (1909); 21 Minn. L. Rev. 213 (1937); 11 Rocky Mt. L. Rev. 104 (1939); 33 Ky. L.J. 189 (1945).