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To determine whether Paul is entitled to recover against Dina for assault, we first look into details on what actually amounts to assault. According to the West’s Encyclopaedia of American Law, assault is an intentional act by one person that creates an apprehension in another of an imminent harmful or offensive (Gale Group, 2008). It is an intentional tort and any commitments of assault are liable for lawsuits in the court. Certain elements must be met to constitute an assault. Based on the information from http://assault.uslegal.com, there are two elements a plaintiff must prove in order to succeed in an action based on assault. The two elements are as the following:
An act intended to cause an apprehension of harmful or offensive .
An act that causes apprehension in the victim that harmful or offensive is imminent. (US Legal, 2010)
These two elements of assault can be proven in the case law Stephens v Myers (1830). This case law proves that an act that causes imminent apprehension in the victim is an assault even though there are no damages. To summarize the case in short, the Plaintiff and the Defendant were arguing in a meeting. The Defendant then advanced toward the Plaintiff with a clenched fist. However, the Defendant was then stopped by another person before he could hit the Plaintiff. In this case, the Defendant has the intention to hurt the Plaintiff by moving toward the Plaintiff with a clenched fist. An intent is established if a reasonable person is certain that certain consequences will result, no matter the end result of the consequences actually take place or not. The Plaintiff is certain that the Defendant would hit him if he was not stopped by another person. The Plaintiff also feels the apprehension whereby he is aware that he is about to be injured by the Defendant. Next, the act that causes apprehension in the victim that harmful or offensive is imminent, whereby the Defendant action to hurt the Plaintiff was immediate. Although the Defendant did not hurt the Plaintiff, an assault is said to have occur by satisfying these two elements of assault.
Relating back to the question on whether Paul is entitled to recover against Dina for assault, Paul need to prove that Dina has performed the two elements that constitute an assault. Based on the information from the passage, there are two threats made by Dina to Paul. Regarding the first threat, Dina screamed, “I know you’re out to get me and I’m going to get you first,” to Paul. Does Dina’s threat to Paul constitute an assault? It certainly satisfies the first element of assault, an act intended to cause an apprehension of harmful or offensive . Dina shows the intention to cause an apprehension of harm to Paul by saying “I’m going to get you first”. It also satisfies the reasonable man standard whereby a reasonable person would feel threaten by such words. The second elements of assault ask whether the apprehension of harmful is imminent or immediate. No, Dina said “I’m going to get you first,’ which means Dina is going to get or hurt Paul anytime in the future. This shows that the threat is not imminent. Dina did not perform any action that causes imminent apprehension of harmful to Paul and Paul is not going to get hurt any time soon. This is supported by the case law Stephens v Myers (1830). Thus, since there is no imminent apprehension of harmful , Dina’s threat here is thus not an assault.
Moving on to the second threat posed by Dina as stated in the passage, “Dina got on her bicycle and rode it as rapidly as she could directly at Paul.” The question is whether Dina’s act constitutes an assault or not? Again, it has to satisfy the two elements of assault. Dina’s act satisfies the first element whereby it is argued that Dina had the intention to run down Paul with her bicycle as shown by her action. As long as Dina has the intention to run down Paul, whether she knocked down Paul or not at the end of the day does not matter. Thus, Dina could not defense herself although she swerved away from Paul last minute as the element of intention has already been satisfied. Next, her intended act causes an apprehension of harmful or offensive to Paul. A reasonable person like Paul would also feel the apprehension with a bicycle running down towards them. A reasonable person would aware that he has the potential to get hurt by such an act. Thus, Dina’s act definitely satisfies the first element. As for the second element, Dina is riding her bicycle rapidly toward Paul. It is obvious that her act is imminent and Dina would be knocking down Paul anytime soon. Thus, it can be said that Dina’s bicycle act that causes apprehension of harmful or offensive is imminent.
So far, Dina’s second act is constituted as an assault after satisfying both of the elements. In this case, Dina as a defendant would of course try to defense herself. However, she could not defense herself by consent, where she does not have the consent to knock down Paul. She cannot claim on other defenses like self-defense, defense of others, property or necessities as Dina is not defensing herself or anybody from Paul. Dina could also try to defense herself as incapable as Dina is diagnosed as schizophrenia. However, she would fail as children or any person with illness can commit intentional torts as well. This is supported by the case law Mcguire v Almy (1937).Since Dina’s second act satisfies both of the elements of assault and Dina could not defense herself, Paul is entitled to recover against Dina for assault. Dina is liable for Paul’s damages, pain and suffering lost wages and punitive damages.
Is Paul entitled to recover against Dina for Battery?
To determine whether Paul is entitled to recover against Dina for battery, we first look at what constitutes battery. According to the West’s Encyclopedia of American Law, at common law, battery is an intentional unpermitted act causing harmful or offensive with the “person” of another. (Gale Group, 2008). Battery is an actual and clearly seen intention to strike someone, with intent to harm or in a “rude or insolent manner”, even if the injury causes a slightest damage. Battery is a tort and also the basis of a lawsuit as a civil wrongful action if however there is a damage that occurred. There are three elements that must be conceived to establish a case of battery. The following elements are as follows:
An act by the defendant
An intent to cause harmful or offensive on the part of the defendant
Harmful or offensive to the plaintiff
These three elements of battery can be proven in the following case mention which is the case of England v Barron (2004). To shorten up the overview of the case, firstly, this case satisfies the first element of battery which is the act by the defendant. This is proven when the Plaintiff, England stopped at the gas station, the Defendant which is the truck driver followed her, punched her in the face and fled off. This shows that the Defendant causes physical harm and injury to the Plaintiff. Secondly, this case also satisfies the second element of battery which is the intent to cause harmful or offensive on the part of the defendant. This is proven when the Plaintiff, was exiting the highway in the car, the Defendant driving a 18 wheeled truck was trying to get off the same exit allegedly drove aggressively, pulling into England’s lane, forcing her to speed up to avoid collision and making obscene gestures. The defendant then followed her to the gas station which the Plaintiff stopped at. This shows that the Defendant has the intent to cause harm to the Plaintiff. Thirdly, this case also satisfies the third element of battery which is harmful or offensive conduct to the plaintiff. This is proven by the Defendant who followed the Plaintiff, England to the gas station, punched her and fled and eventually causes the Plaintiff to suffer from facial and neck trauma that includes a fractured eye socket which requires surgery. This shows that the Defendant commit a harmful or offensive conduct to injure the Plaintiff. Overall, this case proves the three elements that constitute battery.
Relating back to the case of the question on whether Paul is entitled to recover against Dina for battery, Paul need justify that Dina’s actions satisfies the three elements to establish a case of a battery. Dina satisfies the first element of battery which is the act. It is clearly seen that in this case when Dina got on her bicycle and rode is as rapidly as she could directly at Paul. Although, Dina swerved away from Paul at the last moment, Paul reacted by diving to one side that eventually causes him to, struck his head on the curb and suffered a severe concussion and facial injuries. This clearly shows that Dina acted in a certain way by riding on her bicycle and swerved away at that last minute that eventually causes Paul to injure his own self.
Furthermore, Dina also satisfies the second element of battery which is the intent. It is clearly seen in this case that when Dina is face to face with Paul, Dina, without provocation, gestured threateningly and screamed, “I know you’re out to get me and I’m going to get you first,” and then strode away. This clearly shows that Dina intended to injure Paul based on what she had just said. Dina showed another intention with her bicycle attack. When Dina rides her bicycle rapidly toward Paul, she has the intent to run down Paul with her bicycle as well although she swerved away last minute. The intent is clear and specific where a reasonable in Paul situation would felt the intent from Dina to hurt him. Since Dina had created an intention, the second element of battery is satisfied.
In addition, Dina also satisfies the third element of battery which is a harmful or offensive conduct. In this element, it is not necessary for the defendant’s wrongful act to result in direct with the victim. It is sufficient if the act sets in motion a force that results in the . It is clearly seen in this case that Dina riding her bicycle rapidly toward Paul causes Paul to get scared and swerved away and struck his head on the curb and suffered a severe concussion and facial injuries. Dina happens to cause that incident by riding on her bicycle rapidly and swerved at the last minute. This clearly shows that Dina commit a harmful or offensive conduct that causes Paul to injure his own self.
In accordance to the defenses of battery by Dina for what she had done to Paul, Dina could have tried to defense herself. The Defendant, Dina could argue she has got no responsibility to the damages occurred in the Plaintiff, Paul. Dina could argue that although she got on her bicycle and rode it as rapidly as she could directly at Paul but however, she swerved away from Paul at the last moment, thus, she does not contribute to Paul’s injury. However, she would fail as Dina’s act is the one that cause Paul to swerve away from Dina as any reasonable man would have done. It is foreseeable that Paul would swerve away from Dina. Secondly, Dina could also defend herself by self-defense by stating that the Defendant, Dina herself is only protecting herself from being harmed by the Plaintiff, Paul. Dina could argue that when she saw Paul raking the leaves that had fallen into the street fronting their adjoining homes. Dina felt the danger and felt worried that Paul might harm her. Thus, she rode her bicycle directly at Paul and swerved away at the last minute. This would fail as well since a reasonable person would not feel Paul’s threat by just raking the leaves. Last, Dina could also try to defense herself again as incapable as Dina is diagnosed as schizophrenia. However, she would fail as children or any person with illness can commit intentional torts as well, supported by the case law Mcguire v Almy (1937).
In conclusion, based on what that had just been justified, even though Dina defended herself, however, Dina still conducted a malicious act by committing “battery” as Dina satisfies the three elements of battery which are an act by the defendant, an intent to cause harmful or offensive on the part of the defendant and harmful or offensive to the plaintiff. Thus, Paul is entitled to recover against Dina for battery for his damages, pain and suffering, lost wages. However, Dina is not liable for punitive damages.
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