Banks v. Shivers
432 P.2d 339, 20 Utah 2d 25, 1967 Utah LEXIS 517 (1967)
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Rule of Law:
A jury instruction defining civil assault as 'an unlawful attempt coupled with a present ability to commit an injury' is not a prejudicial error, as the distinction between causing 'fear' and causing 'apprehension' of harm is not legally significant.
Facts:
- Banks and Shivers were both students at Utah State University.
- Prior to the incident, Shivers and two friends entered Banks' apartment uninvited and ate her chicken, which created hostility between Banks and Shivers.
- On the day in question, Shivers and a companion went to Banks' apartment, where she lived with a roommate, to cook chicken because their own utilities had been shut off.
- During an argument, Shivers clapped his hands in front of Banks' face.
- Banks ordered Shivers to leave, but he refused to do so until his chicken was cooked.
- In response, Banks hit Shivers in the mouth, causing it to bleed.
- A physical altercation ensued in which Shivers grabbed Banks and pushed her to the floor.
Procedural Posture:
- Plaintiff Banks sued defendant Shivers in a state trial court for assault and battery.
- Defendant Shivers filed a counterclaim against Banks, also for assault and battery.
- The case was tried before a jury.
- The jury returned a verdict of no cause of action for both Banks' claim and Shivers' counterclaim.
- The trial court denied Banks' motion for a new trial.
- The trial court entered a judgment on the jury's verdict.
- Plaintiff Banks appealed the judgment to the Utah Supreme Court.
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Issue:
Is a jury instruction that defines civil assault as 'an unlawful attempt coupled with a present ability to commit an injury on the person of another' a reversible error because it fails to include the concept of creating an 'apprehension' of harmful contact?
Opinions:
Majority - Henriod, Justice
No, the jury instruction defining civil assault as 'an unlawful attempt coupled with a present ability to commit an injury' was not a reversible error. The court held that the evidence was sufficient to support the jury's verdict in favor of the defendant. The court found the plaintiff's argument, which relied on the Restatement of Torts' distinction between 'apprehension' and 'fear,' to be unpersuasive, viewing the two terms as synonymous. Therefore, even if the instruction was imperfect, it was not prejudicial to the plaintiff under the circumstances of the case.
Dissenting - Ellett, Justice
Yes, the jury instruction was a reversible error. The definition of assault provided to the jury is derived from criminal law, which aims to prevent breaches of the peace, whereas the purpose of civil assault is to protect an individual's tranquility. The correct standard for civil assault, as stated in the Restatement of Torts, is an act intended to cause an 'imminent apprehension of such a contact.' Apprehension is not the same as fear; a person can apprehend a contact without being frightened. The jury could have found that Shivers did not intend to physically injure Banks when clapping his hands but did intend to cause apprehension, which is sufficient for assault. This erroneous instruction likely affected the verdict.
Analysis:
This case illustrates a critical transition point in tort law concerning the definition of civil assault. The majority opinion upholds the traditional, narrow definition derived from criminal law, which requires proof of an actual attempt to cause physical injury. In contrast, the dissent advocates for the modern, broader standard from the Restatement (Second) of Torts, which focuses on the victim's reasonable apprehension of imminent harmful or offensive contact. The case is significant because it highlights the jurisprudential shift toward recognizing the protection of mental tranquility as a key purpose of tort law, even though the majority here declined to adopt the newer standard.
