Copyright 1965, American Law Institute

Division One - Intentional Harms to Persons, Land, and Chattels
Chapter 2 - Intentional Invasions of Interests in Personality
Topic 3 - The Interest in Freedom from Apprehension of A Harmful or Offensive Contact


 (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.

COMMENTS & ILLUSTRATIONS:  Comment on Subsection (1):

a.  As to the meaning of the words "legal cause," see § 9.

b.  Common law action of trespass for assault.  At common law, the appropriate form of action to enforce the liability described in Subsection (1) was the action of trespass for assault. Therefore, an act which makes the actor liable under the rule stated in this Section is customarily called an assault.

c.  In order that the actor shall be liable under the rule stated in this Section, it is only necessary that his act should cause an apprehension of an immediate contact, whether harmful or merely offensive. It is not necessary that it should directly or indirectly cause any tangible and material harm to the other. If, however, any such harm results to any legally protected interest of the other as a legal consequence of the apprehension, the other may recover damages for such harm as part of the damages recoverable in the action brought for the assault.

d.  An act is done with the intention of putting the other in apprehension of an immediate harmful or offensive contact if it is done for the purpose of causing such an apprehension or with knowledge that, to a substantial certainty, such apprehension will result.

e.  As defined in § 10, the word "privilege" denotes the fact that acts which would ordinarily subject the actor to liability do not do so under particular circumstances and when done for particular purposes, either because the other consented to the invasion which results from the actor's conduct or because such acts are permitted by law irrespective of the other's consent. The rules which determine whether the other's words or other conduct constitute an effective consent are stated in §§ 892-892 D. The consent which is here important is consent to be put in apprehension. Therefore, consent to the act done by the actor is not necessarily consent to the apprehension in which it puts the other, as where the other does not realize that the doing of the act is likely to inflict a bodily contact upon him or to put him in apprehension thereof.

Comment on Subsection (2):

f.  In order to become liable under the rule stated in this Section, it is necessary that the actor intend to inflict a harmful or offensive bodily contact upon the other or a third person or put him in apprehension of such contact. Unless he acts with such intent, the actor is not liable for an assault although his conduct creates an unreasonable risk of causing such an apprehension to another and although such apprehension is actually caused. The interest in freedom from apprehension of a harmful or offensive contact is protected only against acts intended to inflict a bodily contact or to cause an apprehension of such contact, and not against conduct which creates such a risk of it that, had the risk threatened bodily harm, it would constitute negligence.

REPORTERS NOTES:  This Section has been changed from the first Restatement, in order to conform to the style of later Sections, in which the actor is stated to be "subject to liability," without spelling out in each Section the necessity of legal cause or the possibilities of defenses.

The revision has eliminated the phrase "other than mere words," as to which see § 31. No other change in substance is intended.

See, illustrating the application of this Section: Kline v. Kline, 158 Ind. 602, 64 N.E. 9, 58 L.R.A. 397 (1902); Ross v. Michael, 246 Mass. 126, 140 N.E. 292 (1923); Brown v. Crawford, 296 Ky. 249, 177 S.W.2d 1 (1944); Hrnicek v. Chicago, M. & St. P. R. Co., 187 Iowa 1145, 175 N.W. 30 (1919); John R. Thompson Co. v. Vildibill, 211 Ala. 199, 100 So. 139 (1924).