Brower v. Ackerley
943 P.2d 1141 (1997)
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Rule of Law:
For a threat to constitute civil assault, it must create an apprehension of imminent harmful contact, not merely a threat of future harm. When conduct is sufficiently extreme and outrageous to establish the first element of the tort of outrage, the outrageous character of the conduct itself can serve as important evidence of the severity of the plaintiff's emotional distress.
Facts:
- Jordan Brower, a civic activist, investigated and exposed alleged violations of Seattle's billboard regulations by Ackerley Communications, Inc.
- In 1991, Brower filed a lawsuit against the City of Seattle and Ackerley Communications to enforce the regulations.
- Within two days of filing the suit, Brower began receiving a series of anonymous, harassing phone calls to his home that continued for 20 months.
- The calls escalated in response to public actions taken by the City against Ackerley Communications.
- On the evening of July 19, 1993, after the City Council passed a new billboard ordinance, Brower received three calls from the same person.
- The second call included the threat, "I’m going to find out where you live and I’m going to kick your ass."
- The third call, in a disguised voice, stated, "Ooooo, Jordan, oooo, you’re finished; cut you in your sleep, you sack of shit."
- Police traced the calls to the residence of Christopher Ackerley, where his brother, Theodore Ackerley, was also present at the time.
- Brower alleged that as a result of the calls, he suffered from panic, terror, sleeplessness, an inability to concentrate, and a constant fear for his and his family's safety.
Procedural Posture:
- Jordan Brower filed a civil suit against Christopher and Theodore Ackerley in trial court for assault, negligence, and the tort of outrage.
- The Ackerleys filed a motion for summary judgment to dismiss all of Brower's claims.
- The trial court granted the Ackerleys' motion and dismissed all claims.
- Brower, as the appellant, appealed the trial court's dismissal to the Court of Appeals of Washington.
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Issue:
Does a telephoned threat of future physical harm, made without any accompanying physical acts indicating an ability to carry out the threat immediately, constitute a civil assault?
Opinions:
Majority - Becker, J.
No, a telephoned threat of future physical harm does not constitute civil assault because it lacks the element of imminence. Civil assault requires an act that puts the victim in reasonable apprehension of an imminent harmful or offensive contact. The court reasoned that words alone are insufficient for assault unless other acts or circumstances create an apprehension of immediate harm. Here, the threats made to Brower over the phone—to "kick your ass" after finding his location and to "cut you in your sleep"—were threats of future action, not imminent harm. The caller was not in a position to inflict physical violence "almost at once." The court distinguished this from the tort of outrage, holding that the extreme and outrageous nature of the Ackerleys' alleged conduct was itself sufficient evidence of severe emotional distress to allow that claim to proceed to a jury, reversing its dismissal.
Analysis:
This decision clarifies the critical element of imminence in the tort of civil assault, particularly in the context of threats made via telephone. It establishes that fear of future violence, however frightening, does not satisfy the legal requirement for assault, thereby directing such claims toward torts like intentional infliction of emotional distress (outrage). The ruling's analysis of the outrage claim is also significant; by holding that the extremity of the defendant's conduct can itself be evidence of severe distress, the court potentially lowers the evidentiary burden for plaintiffs in such cases, making it easier for them to survive summary judgment and reach a jury.
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