Newman v. Gehl Corp.
731 F.Supp. 1048, 1990 U.S. Dist. LEXIS 2607, 5 I.E.R. Cas. (BNA) 830 (1990)
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Rule of Law:
For an act to constitute civil assault under Florida law, it must be an intentional, unlawful offer of injury that creates a reasonable apprehension of imminent peril, coupled with the apparent present ability to carry out the threat. Mere words or a pattern of harassment, without a threat of immediate harm, are insufficient to establish a claim for assault.
Facts:
- Plaintiff was terminated from her employment with Defendant in October 1988.
- Around the time of her termination, Defendant's agent, Les Minard III, told Plaintiff in a lounge that anyone who spoke against the company would be 'taken care of.' Plaintiff admitted she was not in fear of Minard at that time and was 'affectionate' toward him later that evening.
- Another agent, Dave Falcone, told Plaintiff that the company would not 'make it easy for her' if she filed a lawsuit. Plaintiff admitted she was not in fear of Falcone when he made the statement.
- After leaving her employment, Plaintiff received anonymous, threatening phone calls, with one caller saying 'back off bitch.'
- In the period following her termination, an object was thrown at her home, and on several occasions, an unknown person prowled around her mobile home, slammed her screen door, and shook the structure at night.
- Plaintiff alleges these harassing incidents stopped after Defendant's president, Joe Gehl, told her he would 'see to it that she would not be threatened anymore.'
- As a result of the anonymous incidents, Plaintiff kept a loaded gun in her home and installed a street lamp in her yard for protection.
Procedural Posture:
- Plaintiff filed a multi-count amended complaint against Defendant in the U.S. District Court.
- The complaint included claims for sex discrimination, violation of the equal pay act, assault (Count III), and violation of a Florida civil remedies statute for criminal practices (Count IV).
- Defendant filed a motion for partial summary judgment, asking the court to dismiss Counts III and IV.
- The court ordered the parties to file a joint memorandum of law stipulating to undisputed facts for the purpose of the motion.
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Issue:
Do threatening statements that do not create a subjective fear of imminent harm in the listener, combined with subsequent anonymous acts of harassment, constitute civil assault under Florida law?
Opinions:
Majority - Kovachevich, J.
No. The alleged actions do not constitute civil assault because they fail to meet the essential element of creating a fear of imminent peril. To establish assault, there must be an intentional threat of injury that creates a reasonable fear of immediate harm, coupled with the apparent ability to carry it out. The statements by Defendant's agents, Minard and Falcone, did not constitute assault because the Plaintiff herself admitted she felt no fear of imminent peril at the time they were made; in fact, her subsequent behavior with Minard contradicted any claim of fear. The later anonymous acts, such as threatening phone calls and prowlers, while constituting a 'pattern of harassment,' also fail the assault test. The court reasoned that 'Mere words or threats are not assault; they must be accompanied by acts or circumstances to put one in reasonable apprehension of imminent harmful or offensive contact.' Each of the individual anonymous incidents lacked the element of imminent peril and the apparent present ability of the perpetrator to cause harm.
Analysis:
This decision strictly construes the 'imminence' element of civil assault, distinguishing it from general harassment or threats of future harm. It clarifies that a series of intimidating acts, even if they cause genuine fear, will not aggregate into a viable assault claim if each individual act fails to create an apprehension of immediate harmful contact. The ruling establishes that a plaintiff's own subjective lack of fear at the time of a threat can be fatal to an assault claim based on that threat. This precedent makes it more difficult for plaintiffs to bring assault claims based on patterns of harassment or intimidation where a specific, imminent threat cannot be proven for any single incident.
