The tort of assault involves the intentional creation of the apprehension of immediate harmful or offensive conduct but no actual touching. A battery occurs whenever unlawful force is intentionally inflicted on another person that is either physically harmful or offensive to his reasonable sense of dignity.
The main difference between assault and battery is that an assault can occur without actual physical touching as noted in a previous blog post.
Because battery involves the infliction of physical harm, it is obvious that an action can be brought against the person who committed the attack. This is because the attacker physically and directly carried out the battery. But what about others who were involved indirectly? Can you sue individuals who indirectly assisted the attacker? Can you sue an individual in battery if he/she planned the attack or helped the attacker carry it out without physically taking part in it?
The answer is yes.
In civil law, the concept of joint tortfeasors establishes liability (fault) on behalf of several persons who act together in the furtherance of a wrongdoing. For 2 or more persons to be considered joint tortfeasors, the tort in question must be committed by 1 of them on behalf of or in concert with another.
In this case, the 14 year-old injured claimant was physically attacked when he was walking home after school. The attack was carried out by 2 adult males using metal batons. The defendant drove the 2 attackers and supplied them with the metal batons. At one point, the defendant also directed that the attack pause so his son could have a turn attacking the injured claimant.
The injured claimant sued the defendant in battery for compensation for the serious injuries he suffered as a result of the attack. The defendant argued that he was not liable because he did not take part physically in the attack since battery requires physical contact.
The trial judge ruled that the defendant was liable to the injured claimant for his indirect role in the attack. The defendant was considered a joint tortfeasor which holds all those participating in a wrongdoing liable. In other words, if there are several people acting together in concert, then they will all be considered joint tortfeasors and at fault even though only one person actually carried out the wrongdoing.
In reaching the decision to hold the defendant liable, the trial judge considered the fact that the defendant was convicted for criminal assault causing bodily harm for his role as the directing mind of the assault. The following facts were also noted in support of his fault:
(a) Mr. Tilton drove his vehicle with his son and two adult males armed with at least one collapsible metal baton in order to inflict a beating on Mr. Siegerist;
(b) Mr. Tilton told the two assailants who initially exited his vehicle to” go get him”, meaning Mr. Siegerist;
(c) someone from Mr. Tilton’s vehicle yelled, “Trip him,” to onlookers as Mr. Siegerist tried to flee;
(d) Mr. Siegerist was beaten over the head and his body by the two males who came out of Mr. Tilton’s vehicle;
(e) at some point while the two males were hitting Mr. Siegerist over the head and striking his body with at least one metal baton, Mr. Tilton told them to stop in order to allow his older son to “have a go at him”, again meaning Mr. Siegerist;
(f) Mr. Tilton’s son then attacked Mr. Siegerist;
(g) while Mr. Tilton’s son and Mr. Siegerist were grappling with each other, Mr. Tilton got out of his car, walked over to Mr. Siegerist, put his hand on his shoulder area and said, “Are we all good now?”;
(h) Mr. Tilton directed and facilitated the battery upon Mr. Siegerist in order to inflict a beating on Mr. Siegerist to avenge a prior altercation between Mr. Siegerist and Mr. Tilton’s younger son;
(i) Mr. Tilton acted in concert with the individuals who struck Mr. Siegerist to a common end
In addition, the trial judge relied on prior cases which held indirect participants in battery and assault liable and at fault.
In an arson case, a defendant was found liable for his role was as a “wheelman”, ferrying instructions from one defendant to another at the site. While he was not involved in the initial planning nor did he participate in setting the fire, he drove the getaway vehicle that took the other defendants from the scene after the fire started. This defendant was liable as a joint tortfeasor even even though he argued he was “somehow unaware” of the initial purpose of the drive because he did not disassociate himself from the wrong being committed nor did he do anything to stop the other two defendants.
In another case, the plaintiff, who was a process server, sued the defendants for battery arising from an incident where he was struck by a bullwhip by one of the defendants as he attempted to serve documents. The case was framed in battery. The trial judge found both defendants liable as joint tortfeasors even though it was only one defendant who struck the plaintiff with the whip. It was accepted that the other defendant handed the bullwhip to the attacker. Both defendants were found to have engaged in a concerted action to a common end. “It was not necessary” the trial judge noted “that they both struck the plaintiff with the bullwhip”