Civil Model Jury Charge 3.10 ASSAULT AND BATTERY IN NJ
Civil Model Jury Charge3.10ASSAULT AND BATTERY
A.Definition
An assault is an attempt or offer to touch or strike the person of another with unlawful force or violence.A
battery necessarily includes a preceding assault and in addition
extends to the actual touching or striking of the person, with the
intent to do so, with unlawful force or violence.
The
terms violence and force mean the same thing when used in relation to
assault and battery and include any application of force to the person
of the plaintiff even though it entails no pain or bodily harm and
leaves no mark.No particular degree of force or violence is
necessary for an assault and battery and therefore the least touching
or striking of the body of the plaintiff[1]without legal justification against his/her will constitutes an assault and battery.
Cases:
State v. Maier, 13N.J. 235, 242 (1953);State v. Adamo, 9N.J.Super. 7, 9 (App. Div. 1950);Clayton v. New Dreamland Roller Skating Rink, Inc., 14N.J.Super. 390, 398 (App. Div. 1951);Falconiero v. Maryland Gas Co., 59N.J.Super. 105, 109 (App. Div. 1960).
An assault which is unknown to the other person is not actionable unless accompanied by a battery.Restatement (Second) of Torts, Sections 18, 21.
B. Self Defense Burden of Proof
The defendant denies that he/she should be called upon to pay damages
to the plaintiff on the ground that whatever injury was sustained by the
plaintiff was inflicted by the defendant in defense against an assault
being made upon him/her by the plaintiff. Thus he/she raises what is
known in the law as the defense of self defense. Since it has been
introduced by the defendant the law imposes upon the defendant that
burden of proving this defense according to the standard of burden of
proof which I have set out in this charge.
Fundamentally, no person has a lawful right to lay hostile and menacing
hands on another. However, the law does not require anyone to submit
meekly to the unlawful infliction of violence upon him/her. He/She may
resist the use or threatened use of force upon him/her. He/She may meet
force with force, but he/she may use only such force as reasonably
appears to him/her to be necessary under all the circumstances for the
purpose of self protection. Accordingly, if you find that the defendant
in this case has succeeded in proving that he/she was under attack by
the plaintiff, and that the injury sustained by the plaintiff was
inflicted by the defendants having used only such force as, under all
the circumstances, was necessary or reasonably appeared to have been
necessary for his/her own protection, then the defense of self defense
has been proven, and you must find in favor of the defendant and against
the plaintiff. Should you find, however, that the defendant was not
under attack, or, if he/she was under attack, that he/she used more
force than reasonably appeared necessary to defend himself/herself, or
that he/she continued the use of force after the apparent necessity for
self defense had ceased, then the defense of self defense has not been
proven.
You may bear in mind; however, that one is not ordinarily expected to
exercise the same refined degree of judgment at times of great stress or
excitement that he/she would under more placid circumstances. And so
the degree of force actually used by the defendant should not be
appraised by you from the standpoint of one who has the leisure to make a
calm, unhurried judgment. The conduct of the parties at the moment of
conflict should be evaluated by you from their perspective at that time
and in the light of the judgment of which they were then reasonably
capable.
Cases:
State v. Goldberg, 12N.J.Super. 293, 303, 307 (App. Div. 1951);Hagopian v. Fuchs, 66N.J.Super. 374, 379 (App. Div. 1961);State v. Black, 86N.J.L. 520, 524 (Sup. Ct. 1914).
C. Self Defense Serious Bodily Harm
Where serious bodily harm is inflicted by the defendant upon the
plaintiff, or where a means of defense is employed which is intended or
likely to cause death or serious bodily injury, you may find that the
defendant acted in self defense only if the defendant satisfies you by
the greater weight of the believable evidence that he/she reasonably
believed that he himself/she herself was in peril of death or serious
bodily harm which he/she could have averted only by the immediate use of
such a self defensive measure. You must therefore determine from the
evidence whether the circumstances which were known to the defendant, or
which should have been known to him/her, were such as would lead a
reasonable person, one of ordinary firmness and courage, to entertain an
apprehension that he/she was in danger of death or serious bodily harm.
The term serious bodily harm is used to describe a bodily harm, the
consequence of which is so grave or serious that it is different in kind
and not merely in degree from other bodily harm. A harm which creates a
substantial risk of death is a serious bodily harm, and is harm
involving the permanent or protracted loss of the function of any
important member or organ.
Cases:
State v. Hipplewith, 33N.J. 300, 316-317 (1960);State v. Abbott, 36N.J. 63, 70-72 (1961);Hagopian v. Fuchs, 66N.J.Super. 374, 381-382 (App. Div. 1961).
Injuries amounting to mayhem,N.J.S.A.2A:125-1, also constitute serious bodily harm.Hagopian v. Fuchs,supra, at 381.
D. Self Defense Duty to Retreat
The plaintiff maintains, however, that even should you find that the
defendant reasonably apprehended that he/she was in danger of death or
serious bodily harm, still the defendant was not justified in using a
deadly force upon the plaintiff. For under the circumstances disclosed
by the evidence, the plaintiff contends, the defendant had a duty to
retreat which he/she did not fulfill, and that his/her use of a deadly
weapon was, accordingly, not privileged.
I charge you that the use of a deadly force is not justifiable when an
opportunity to retreat with complete safety is known by the defendant to
be at hand. By a deadly force is meant a force which is used for the
purpose of causing, or which is known by the defendant to create a
substantial risk of causing, death or serious bodily harm. The use of
such force is not justifiable if the defendant knew that it could have
been avoided with complete safety to himself/herself by retreating.
Where these conditions are present the defendant has a duty to retreat,
and his/her use of a deadly force under these circumstances cannot be
justified as an act of self defense. In resolving the question of
whether the defendant knew that the opportunity to retreat existed and
whether it would have afforded him/her complete safety, the total
attendant circumstances, including the excitement of the occasion, must
be considered.
If you find from all of the testimony on this issue that the defendant
had a duty to retreat which he/she did not fulfill, you have determined
that the defendant did not act justifiably in self defense.
Cases:
State v. Abbott, 36N.J. 63, 71 (1961);Hagopian v. Fuchs, 66N.J.Super. 374, 381 (App. Div. 1961).
E. Defense of Another
In this case the defendant denies that he/she should be required to pay
damages to the plaintiff for the reason that whatever injury was
sustained by the plaintiff was inflicted by the defendant in defense of a
third party who reasonably appeared to have been in peril of death or
serious bodily harm at the hands of the plaintiff.
I charge you, therefore, that one may justifiably intervene in defense
of any person who is in actual or apparent imminent danger of death or
serious bodily harm, and in so doing he/she may use such force as he/she
has reason to believe, and does believe, necessary under the
circumstances. The defendant must be reasonable in his/her belief that
the third party is in dire peril of death or serious bodily harm. He/She
must also have a reasonable basis to believe that the force he/she uses
is necessary to protect the apparent victim from the threatened harm.
Whether the defendant was reasonable in both these respects, that is,
his/her belief that the apparent victim was in peril of death or serious
bodily harm and that the force used was necessary are questions which
you must resolve. Your conclusions must be arrived at on the basis of
the facts which were known to the defendant at the time, not those known
only to the plaintiff and the third party, unless you further conclude
that the defendant could and reasonably should have apprised
himself/herself of those facts before acting as he/she did.
The defendant has the burden of proving to you that he/she inflicted
the injuries complained of while acting in defense of the third party
within the foregoing principles.
You may bear in mind that one is not ordinarily expected to exercise
the same refined degree of judgment at times of stress and great
excitement that he/she would under more placid circumstances. Thus, the
defendants evaluation of the gravity of the danger threatening the third
party and his/her estimate of the degree of force necessary to protect
the third party should not be weighed by you from the standpoint of one
who has the leisure to make a calm, unhurried judgment. Defendants
conduct at the moment of conflict should be evaluated by you from
his/her perspective at that time and in light of the judgment of which
he/she was then reasonably capable.
Case:
State v. Chiarello, 69N.J.Super. 479, 492 (App. Div. 1961).
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