Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 2. Intentional Harms
assault in a home boundary dispute where an angry neighbor yelled: “Let’s duke it out . . . . I’m a
Vietnam vet” and “I wouldn’t be surprised if my wife—if, while you’re working on the fence, my
wife took a gun and shot you.” Similarly, in Groff v. Sw. Beverage Co., Inc., 997 So. 2d 782 (La.
2008), a Louisiana court dismissed the assault claims of an employee who sued his employer for
yelling, “using numerous profanities,” and “hitting the desk with his hand.” These are the sorts of
unpleasant encounters that the common law of torts requires people to bear on their own.
3. Threats of future harm? Nor is it generally sufficient to allege threats of future harm.
Consider the opinion in Kijonka v. Seitzinger, written by Judge Richard Posner of the U.S. Court
of Appeals for the Seventh Circuit. Appellant Kijonka was a former small-town mayor who
during his term had fired the town dog-catcher, one Berle “Peanut” Shoulders, Jr., after reports of
corruption and narcotics dealing. Shoulders then stalked Kijonka for some time in a threatening
manner. Some time later the two men spotted one another while driving. “[A]ccording to
Shoulders, Kijonka rolled down his car window, gave Shoulders a ‘dirty look,’ and said: ‘You
have a nice day and your ass is mine you son of a bitch and I will get you.’” Judge Posner held
that the exchange did not constitute an assault:
Ever since the fourteenth century, assault whether civil or criminal has involved (1)
a threatening gesture, or an otherwise innocent gesture made threatening by the
accompanying words, that (2) creates a reasonable apprehension of an imminent
battery. . . . A merely verbal threat of indefinite action in the indefinite future is not
an assault. . . . It is missing two elements: gesture and imminence. . . . Kijonka’s
rolling down his car window was not a threatening gesture . . . . There was no
threatening gesture, nor even a present threat. It’s not as if Kijonka had said, “I
have a gun in my glove compartment and I’m going to reach in and get it and shoot
you, you son of a bitch.” Even that would have been a threat rather than an assault
until he actually reached toward the glove compartment. . . .
Shoulders, given his history of stalking Kijonka, may have feared that the day of
retribution had arrived (though this is doubtful, given the presence at the scene of a
policeman). But a victim’s fear . . . cannot transform a remote threat into an assault.
364 F.3d 645 (7th Cir. 2004). Why should the common law not make such behavior actionable?
Is there anything socially valuable in the kind of behavior at issue here?
4. Threats of distant harm. Distance in space will vitiate an assault action just as surely as
distance in time. The canonical case is Smith v. Newsam, 84 E. R. 722 (K.B. 1673), where the
court per Chief Justice Hale rejected a claim of assault in which plaintiff complained that the
defendant had shaken “a sword against the plaintiff in a cutlers shop, being on the other side the
street.” Mere words or gestures will not constitute an assault absent the imminent apprehension of
contact.
5. Conditional threats. The same principle generally renders conditional threats
inactionable. In the classic English case Tuberville v. Savage, the “evidence to prove a
provocation was, that the plaintiff put his hand upon his sword and said, ‘If it were not assizetime,
I would not take such language from you.’” (In response to this “provocation,” the
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