You may think of criminal charges in a rerun of Law & Order when you hear the words “assault and battery.”
But as the victim of an attack, you should know that assault and battery can serve as grounds for a civil action against the person (or group of people) who hurt you.
Assault and battery are recognized causes of action under tort law that provide victims of violence with a basis for seeking economic and non-economic damages in a personal injury lawsuit. Specifically, they are considered intentional torts.
So, if you suffered severe injuries in an altercation or attack, call my law firm at 804-251-1620 or fill out this form to see if you have a civil assault and battery case (parallel to the criminal case). You can recover monetary damages against a defendant who intended to harm you.
In Virginia, assault (often referred to as “simple assault”) and battery (often referred to as “assault and battery”) are serious criminal offenses.
Typically, law enforcement and prosecutors charge assault and battery as a Class 1 misdemeanor under Virginia Code § 18.2-57. However, attacking a person because of their gender, race, disability, religion, or sexual orientation can lead to a felony assault or battery charge.
Although assault and battery are often interrelated, and some courts use the terms interchangeably, they are separate causes of action with distinct legal elements you must meet to win a lawsuit.
In contrast to battery, assault does not require a defendant to make any physical contact or inflict bodily harm. For you to have a viable assault claim, you must typically prove the following legal elements:
In sum, if the defendant’s actions placed you in fear of imminent physical contact, then you likely have grounds to file an assault claim. Whether the defendant physically contacted you is immaterial.
Generally speaking, you may bring a battery claim if there is sufficient evidence to prove the following legal elements:
Remember, a defendant does not have to intend to make physical contact for a battery to occur. But you must have evidence indicating that the defendant intended the action that ultimately caused the physical contact.
For example, if the defendant intentionally threw an object in your direction but did not intend to hit you, but the object wound up striking you in the head, the defendant likely committed a battery against the plaintiff.
Assault and battery are typically the basis for criminal charges against a defendant. Nevertheless, an injured party generally has the right to also file a civil action following an assault and battery. Plaintiffs pursue this option since, in a criminal case, the odds of obtaining financial restitution for your harms and losses are low, especially compared to a civil action.
While financial restitution is possible in a criminal case, it is not guaranteed. Even when the court orders the defendant to pay direct economic losses to a victim in a criminal case, this does not mean you will get an adequate amount.
This inadequacy is because courts may base the restitution on the defendant’s ability to pay in the context of a criminal case. In addition, if the defendant must serve time in jail for the offense, they would not be obligated (or able) to pay restitution until after their release and finding of employment.
It is also important to note that criminal courts generally will not order a defendant to pay restitution for pain and suffering, lost wages, medical expenses, and other damages you can pursue in a civil case for assault and battery. Nor do they consider future harms and losses stemming from the incident. A civil assault and battery claim, therefore, is your best option to be made whole after an attack.
In an assault and battery personal injury action, you can pursue maximum compensation for your harm and losses.
To have a viable claim where a judge or jury will award damages, you must present evidence substantiating your argument that the defendant’s acts caused you harm. The harm might be in the form of bodily injury, emotional distress, or both.
Virginia recognizes different types of damages in personal injury cases: economic, non-economic, and punitive.
Understanding the different categories of recoverable damages helps you assess the potential value of your assault and battery personal injury claim. The severity of your bodily injuries will likely be the most significant factor in determining the amount of financial restitution you can reasonably expect to recover. For example, a relatively minor bodily injury (e.g., scrapes and bruises) likely will not garner as much compensation as a severe, life-altering bodily injury (e.g., traumatic brain injury, paralysis, permanent disfigurement).
In addition, a well-documented claim can significantly affect how much money the court awards. Concrete proof of the defendant as the aggressor is critical in many civil assault and battery lawsuits where the parties knew each other before the attack.
Let’s examine each type of damage.
Economic damages are losses you can assign a specific monetary amount (typically through medical bills, employer wage statements and attendance records, receipts for out-of-pocket expenses, and life care planning reports).
Examples of economic damages include:
Non-economic damages are losses you cannot link to a specific invoice or receipt. Nevertheless, they are the types of changes and losses that can dramatically impact your daily life, such as being unable to play with your children, being unable to sleep a whole night due to severe pain, or being forced to miss out on family events and special occasions due to your injury or physical therapy.
Unlike the other damage categories, which are meant to put you in the same position you were in before the assault and battery, punitive damages have a different purpose. Their goal is to punish the wrongdoer, particularly in cases where their behavior was malicious or done with reckless indifference to the rights of others.
In addition, punitive damages try to deter such behavior in the future. It is important to note that, in Virginia, punitive damages are not awarded often and are generally only available in especially egregious incidents.
If the attack leads to criminal charges against the defendant, you can use that fact to strengthen your settlement negotiation and trial position in the civil assault and battery case.
As the plaintiff filing a personal injury claim, you bear the legal burden of proof. This means, in your assault and battery civil case, you must present sufficient evidence to show that the defendant’s actions proximately caused your injuries and other damages.
The prevailing legal standard in Virginia civil cases is the “preponderance of evidence,” which means you must prove that your claims are more likely valid. According to the Legal Information Institute, 51 percent certainty is the governing threshold to meet the preponderance of evidence standard in most civil cases
In contrast, in a criminal case, the government bears the burden.
Helping satisfy your burden is where criminal charges can play a role in your civil case.
When a defendant pleads or is found guilty of assault or battery, you can use that ruling to meet the elements of assault or battery causes of action.
And even if the defendant does not get charged or convicted of assault or battery, you can use the police incident report as evidence in your civil case. Your burden of proving civil assault or battery is lower than the criminal burden.
So, in sum, criminal charges against the defendant can serve as additional evidence to support your claim or possibly impact the timeline or settlement of your personal injury case.
To strengthen your chances of meeting the burden of proof in an assault and battery personal injury case, consider taking the following actions:
With proper evidence and effective legal representation, you can navigate the complexities of civil litigation and secure the outcome you deserve.
According to § 8.01-243 of the Virginia Code, the statute of limitations for filing a civil assault and battery lawsuit in Richmond, Henrico, Chesterfield, and elsewhere in Virginia is usually two years from the date of the incident. This means you have two years from the date the defendant attacked you to file a civil action seeking financial restitution for the harm caused.
The two-year statutory deadline may vary depending on the circumstances of the case, so I recommend you consult with an experienced and knowledgeable Richmond civil assault and battery lawyer as soon as possible to ensure that you do not miss a critical statutory deadline.
If you suffered serious harm in an incident or altercation with another person or group of people, then now is the time to assess your legal options and whether you have grounds to file an assault and battery civil case.
The Virginia legal system can be complex and challenging to navigate. It makes sense to speak to an experienced and knowledgeable assault and battery lawyer in Richmond, like me.
My team works tirelessly to achieve optimal financial recovery for you and your loved ones. We have secured tens of millions of dollars for our clients in Richmond, Newport News, and elsewhere in the Commonwealth of Virginia.
Contact our office today to schedule a free, confidential consultation. During the consultation, we will take the time to address your questions, assess what happened, and discuss your legal options. You can reach us at (804) 251-1620 or (757) 810-5614. If we agree to represent you, you pay no fees unless and until you win compensation.