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Can I Sue for Assault?

By Chuck Geerhart

womOne of the most common calls we receive at Paoli & Geerhart is about assault. Often, a person has been suddenly assaulted in the street. Or by someone in the home. Or by a landlord, a bar bouncer, or another bar patron.  Are these types of cases worth pursuing?  The answer is,  “It depends.”

First, the threshold question: Is there money available? There is no sense pursuing an assault case if there is no source of funds to pay a settlement or judgment.  So, in the common case of assault on the street, I usually tell clients to forget it. The kind of lowlife who commits a brazen street assault has probably not been successful in life, and has no money.

I also get calls where the client says the assailant has a house, a nice car, a job, or other assets.  This is nice to know, but you’re probably never getting any personal assets even if you win at trial. Those assets will scatter with the wind. Or the perpetrator will declare bankruptcy, which usually has the effect of discharging your trial judgment completely.

Another thing to consider: most lawyers working on a contingent fee basis do not want to have to become collection attorneys after getting a judgment.  So finding a lawyer for the average assault on the street case will be difficult, no matter how badly hurt you are.

What about insurance?  Insurance by law cannot cover intentional acts, like assault. See Insurance Code sec. 533.  Insurance can cover negligence of a premises owner, as discussed below.

So what is a “good” assault case?  Sorry to say, but you need a major injury. Bumps and bruises alone do not make a good assault case, because these cases are expensive. There will be a summary judgment motion (where the defendant tries to have to court dismiss the case), which often takes 30 or 40 hours of attorney time to oppose. There will be medical and liability experts, which can cost tens of thousands of dollars.  I generally do not take assault cases unless there are broken bones with surgery, or a brain injury. These are the kinds of injuries that can result in a large verdict or settlement. Smaller cases are not cost effective, and often results in a net monetary loss. As a matter of practical economics, I cannot keep my law practice open to help others if I take losing cases.

Let’s assume you have a major injury case.  Next we need some source of settlement funds. Here’s a classic good case: a Walgreens employee assaults a customer. Walgreens is liable for the torts of its employee. California law has consistently held that fights or assaults in the workplace are generally within course and scope of employment (respondeat superior). See Rodgers v. Kemper Construction, 50 Cal.App.3d 608 (1975) [upholding tort liability of an employer for an assault committed by an employee on a construction site]. Although insurance will not cover an intentional tort, a self-insured corporate employer (like Walgreen’s) is usually financially responsible and can pay.

Another decent scenario is where a bar bouncer injures a customer. This may be covered by insurance as negligence. It should go without saying that the customer must be pure as the driven snow– not drunk or belligerent.  If the customer was acting up and forced the bouncer to get involved, he could be found partially or totally at fault.

A 3rd common scenario is where another bar customer assaults the client. The key here is what kinds of controls were in place to avoid the assault. Did the bar over serve alcohol to the assailant? Was the assailant a minor who shouldn’t even have been in the bar?  Was the bar (or nightclub or arena) understaffed? How long did the assault take to develop? The longer the better, because it means the staff should have stopped the growing conflict.  Did the bar take reasonable steps to ensure the safety of its patrons? The leading case in this area is Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224.

In the bar assault case, there may be insurance available, but often the bar has not purchased the right kind. I always look to others for possible insurance, such as the security company or the event planner or DJ.

To summarize, even if you have a major injury and a source of settlement funds, a liability finding is almost never certain in assault cases. I have been able to settle every assault case, but only because I was careful in case selection.

For more detailed legal information on how to approach assault cases, please see my article “Don’t Get Beaten Up by an Assault Case,” which is on our website and easily found on Google.