California Jury Instruction CACI 1301 Assault—Essential Factual Elements

1301. Assault—Essential Factual Elements

[Name of plaintiff] claims that [name of defendant] assaulted [him/her/nonbinary pronoun]. 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/nonbinary pronoun] was about to be touched in a harmful [or an offensive] manner;]
3. [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

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Nakase Wade | California Business Lawyers & Corporate Lawyers

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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 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:
• An actor is subject to liability to another for assault if
• 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
• the other is thereby put in such imminent apprehension.
• 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.

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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, fl 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)