P went to D's store in order to have her clock fixed. Sapp, employee of D, standing behind a counter, offered to fix her clock if she would allow him to pet and love her.
D reached over the counter an attempted to touch her. D failed to touch her because the counter was too high.
P sued D for assault.
Procedural History:
Trial court found for P.
AL COA affirmed on the assault issue.
Issues:
Is the actual ability of the D to cause harmful or offensive touching a requirement for actionable assault?
Holding/Rule:
The actual ability of the D to cause harmful or offensive touching is not a requirement for actionable assault.
Reasoning:
It is enough that the D has the apparent ability to cause harmful or offensive touching; actual ability is not required. This apparent ability is judged using the reasonable person standard.
Many states hold that words alone do not constitute assault.
Unlike battery, the P in an assault case must be aware of the harm occurring because the definiton of assault requires the P to show that P suffered from apprehension of imminent harmful or offensive touching.
Dissent:
None.
Notes:
Apprehension is not the same as fear.
Respondeat superior - employers are responsible for the actions of their agents if they are acting within the scope of their work.
Apparent ability to cause the harm is the test, measured from the P's side.
