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

Witt & Tani, TCPI 2. Intentional Harms
during the call.
Even assuming Daniel made the alleged threat, we are compelled to find insufficient
evidence of assault . . . . Assault requires “fear of immediate physical contact” coupled with “the
apparent ability to execute” the assault. The record does not establish Daniel’s apparent ability to
execute the threat at the time the threat was made. The testimony only established Kendra’s belief
Daniel had a future ability to return from a distance and execute the threat.
We find insufficient evidence to support the assault element of domestic abuse assault.
We reverse and remand for dismissal of the protective order.
Note
1. Torts and domestic abuse. It is one thing to deny a remedy for ordinary everyday
frictions, for distant threats, or for medieval bluster. But what about the all-too-ordinary verbal
attacks that are characteristic of abusive domestic relations? According to a recent government
report, one in four women and one in ten men in the U.S. “experienced contact sexual violence,
physical violence, and/or stalking by an intimate partner during their lifetime and reported some
form of [Intimate Partner Violence]-related impact.” SHARON G. SMITH, ET AL., NATIONAL
INTIMATE PARTNER AND SEXUAL VIOLENCE SURVEY: 2015 DATA BRIEF – UPDATED RELEASE 8-9
(2018), available at https://perma.cc/8DGD-NRS3. Data is more limited on transgender and nonbinary
people, but a 2015 survey by the National Center for Transgender Equality found that more
than half of the 27,715 respondents had experienced some form of intimate partner violence and
that for one quarter of respondents that violence was “severe.” S. E. JAMES, ET AL., THE REPORT
OF THE 2015 U.S. TRANSGENDER SURVEY (2016), available at https://perma.cc/76R9-3HFM. Do
the limits of the assault cause of action prevent the law from dealing with domestic violence?
Would a more robust assault action empower otherwise disempowered people to resist threats or
acts of violence in the context of intimate and familial relationships? What other consequences
might you expect to follow were courts to more readily recognize as assault situations like the one
in Speicher?
Note that when it comes to using tort law to address domestic violence, the problem may
go much deeper than the elements of any particular tort. Professor Martha Chamallas notes that,
as compared to fifty years ago, tort claims are much more available to people who experience
domestic violence. And yet “practical and cultural reasons” have prevented tort law from
becoming an effective response to domestic violence: “Plaintiffs are deterred by short statutes of
limitations, joinder rules in some jurisdictions which require filing claims in conjunction with a
divorce action, restrictions on legal services organizations prohibiting the filing of such suits and,
most importantly, the lack of liability insurance that could operate as a fund for victims to tap into
to secure compensation. . . .” Martha Chamallas, Will Tort Law Have Its #MeToo Moment?, 11 J.
TORT L. 39, 46-51 (2018); see also Jennifer Wriggins, Domestic Violence Torts, 75 S. CAL. L.
REV. 121 (2001); Camille Carey, Domestic Violence Torts: Righting a Civil Wrong, 62 U. KAN. L.
REV. 695 (2014). What would it take to change this pattern? Why has it proven so sticky?
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