Over the course of the last decade, I've published in excess of 700 articles in the areas of personal injury, criminal defense, workers' compensation and insurance disputes, generally. If you can't find what you're looking for, feel free to contact me to discuss the details of your case and learn how I can help.

What Is The Difference Between Assault And Battery In Baltimore, Maryland?

The elements of civil assault and civil battery under Maryland law are different in several respects. The two civil actions – one for assault- one for battery -are interrelated, and of course, also related to the common law crime of battery, and the current statutory crime of assault in Maryland. Both civil assault and civil battery have an element of proof that must be demonstrated, which is not required to prove the other tort. As attorney Eric T. Kirk will tell you, the crime of assault, on the other hand, can be proven by the State’s Attorney by either proving the elements of civil battery beyond a reasonable doubt, or by proving the elements of a civil assault beyond a reasonable doubt.

Civil Assault in Maryland

The elements of a civil assault under Maryland law are that a defendant, with the present ability to carry out an act causing harm, threatened another, and that target was placed in a reasonable fear or apprehension of bodily injury. As described in more detail below, the crime of assault is defined more expansively. One may have found to have assaulted another in a civil proceeding, even though they never touched, or caused actual physical harm to the Plaintiff, so long as the Plaintiff reasonably believed they were about the be harmed.

Civil Battery in Maryland

What Is The Difference Between Assault And Battery In Baltimore, Maryland

The elements of civil battery under Maryland law are that a defendant intentionally and non-consensually caused a harmful or offensive touching of the person of another. One may have been found to have battered a person in a civil case, even where the Plaintiff was not scared, or frightened, or believed they were going to be, so long as there was an unwelcome physical touching. A civil battery may indeed cause great physical harm to the Plaintiff, and presumably, the greater that harm, the greater the financial recovery, but lasting physical harm does not need to be demonstrated by a successful Plaintiff. Moreover, a Plaintiff does not have to prove the hands, arms or body of the Defendant came into contact with their body. A defendant may commit battery by causing the requisite physical contact with another by an inanimate object. Examples here would be throwing a baseball at someone, or, in perhaps a classic law school example, knocking a dinner place from the hands of another, in a way that caused the plate to come into contact with the hands, or arms, of the Plaintiff.

Compare: Criminal Assault in Maryland

It is perhaps useful to note the differences between a civil assault, a civil battery, and the crime of assault in Maryland. It has been said that second-degree assault is the easiest crime for a prosecutor to prove under Maryland’s criminal statutes. There are three ‘theories’ available to the prosecution to prove an assault. Moreover, the State does not need to prove actual physical harm, just contact, attempt, or apprehension, depending on the theory. 30 years ago, the Maryland Court of Appeals handed down an opinion containing a thorough analysis of the three ways a criminal assault may be proven in Maryland.

“Today, the term of art “assault” may connote any of three distinct ideas:

1. A consummated battery or the combination of a consummated battery and its antecedent assault

2. An attempted battery; and

3. A placing of a victim in reasonable apprehension of an imminent battery.

     -Lamb v. State, 93 Md. App. 422 (1992)

These three paths to conviction available to the State’s attorney are illustrated by Maryland’s Pattern Jury Instructions.

Intent to frighten:

Assault is intentionally frightening another person with the threat of immediate physical contact or physical harm. In order to convict the defendant of an assault, the State must prove that:

That the defendant committed an act with the intent to place the victim in fear of immediate offensive physical contact or physical harm

That the defendant had the apparent ability at that time to bring about offensive physical contact or physical harm, and

That the victim reasonably feared immediate offensive physical contact or physical harm and

That the defendant’s actions were not legally justified

Attempted battery:

Assault is an attempt to cause offensive physical contact or physical harm. In order to convict the defendant of assault the state must prove:

That the defendant actually tried it tried to cause immediate offensive physical contact or physical harm, and

The defendant intended to bring about offensive physical contact or physical harm, and

The defendant’s actions were not consented to by the victim or legally justified


Assault is causing offensive physical contact to another person. In order to convict the defendant of assault the state must prove:

That the defendant caused offensive physical contact or physical harm with/to the victim

The contact was the result of an intentional or reckless act of the defendant, and  w

Was not accidental and the contact was not consented to or legally justified”

-MPJI 4:01

Compare: Criminal Battery in Maryland

In Maryland, the crime of battery is a common-law offense. Common law battery “is any unlawful application of force, direct or indirect, to the body of the victim.” Lamb, supra. The force applied to another, may, but does not have to cause lasting bodily injury to meet this definition. Indeed, “[t]he required result for battery might be termed `bodily injury’ so as to include such obvious matters as wounds caused by bullets or knives, and broken limbs or bruises inflicted by sticks, stones, feet or fists. A temporarily painful blow will suffice, though afterward there is no wound or bruise or even pain to show for it. But, in addition to these more obvious bodily injuries, offensive touchings (as where a man puts his hands upon a girl’s body or kisses a woman against her will, or where one person spits into another’s face) will also suffice for battery under the traditional view.” Lamb, supra, quoting W. LaFave and A. Scott, Criminal Law 685 (2d ed. 1986).

How is a Maryland jury instructed on these defenses?
FULL TRANSCRIPT: Let’s talk for a moment about how a jury would be charged on the law if sufficient evidence of contributory negligence or assumption of the risk is demonstrated at trial. A jury would be told that a plaintiff cannot recover if their negligence is a cause of their injury. Special rules pertain to children when dealing with contributory negligence. They are not held to the same standard as an adult, but rather are held to a standard of a similar child in terms of age and experience. A jury would be charged that an individual – an injured plaintiff- cannot recover if they assumed the risk of their injury. They would also be told that an assumption of the risk is where a plaintiff, with full knowledge of the dangers involved, voluntarily chooses to engage in the conduct that ultimately causes the injury.

Differences Between Assault and Battery

In some respects, the genesis of an article exploring the differences between civil and criminal assaults and battery, and the concepts of assault and battery, generally, may be driven by a tendency to use the terms interchangeably, when, they are in fact distinct concepts. In common parlance, the term “assault and battery” is a common label. It does not help that in Maryland, a battery can be, and almost always is, prosecuted and an assault, under the third theory described above.  Although it is possible, as described to have one, without the other, an understanding of the crimes of assault, and battery is helpful in understanding the theories of recovery of civil damages for assault, or battery, or both. Maryland’s criminal justice system is designed, generally to punish an offender and protect society in general. Although there may be some monetary relief for a victim in a criminal case [e.g. restitution], the primary purpose of the system is not compensation, but retribution. The same conduct might constitute both a crime under Maryland law, as well as a tort, and the perpetrator faces potential consequences for each. Whereas the purpose of a criminal prosecution is the vindication and protection of the people, generally, the purpose of the civil justice system is to award monetary compensation for loss to a specific person- the plaintiff.

Perhaps the most significant single difference between civil assault and civil battery in Maryland involves this statute of limitation. Under Maryland law assault carries a one-year statute of limitation, whereas battery is  subject to a three-year statute of limitation. A statute of limitation, generally, sets the outer timeframe within which someone must act by filing a lawsuit in the appropriate jurisdiction before the expiration of the period. The anniversary of the event is the deadline, and legal action must be taken before that date to preserve the claim. The necessary action is having the suit papers accepted by the pertinent clerk of court, and docketed as filed. This deadline is mandatory, rigid, and inflexible. There are no exceptions. Legal actions filed outside of the time frame are uniformly dismissed by Maryland courts upon the filing of a proper Motion. [ But see, Administrative order, or a series of Administrative orders “tolling” or suspending the statutes of limitation during the early phases of the COVID-19 pandemic. Under this order the time from March 16, 2020 through July 20, 2020 does not count against the statute of limitation for matters that had to be filed during that time.

In Maryland, a while civil battery is subject to the general three years statute of limitation. Assault, on the other hand, is subject to the shortest limitation under Maryland law -just one year. Most ‘intentional’ tort in Maryland, such as defamation, false imprisonment and false arrest are likewise subject to the short limitation period. It may seem surprising, but a one-year period can actually present a relatively tight window within which to bring a claim involving personal injury. There are a variety of circumstances and considerations involved. Certainly, the primary, or a primary reason it may be not possible for the plaintiff- the person alleging injury- as a result of being assaulted, or battered- to bring that suit within just one year is that their recuperation might not be complete within that one year. The danger here, of course, is that the court -whether that’s a judge or a jury- that determines the case might not be able to fully compensate the successful plaintiff because evidence regarding what the additional needed medical care might be is simply not available, or is not ascertainable within a reasonable degree of medical certainty.  Moreover, insofar as the amount of claimed damages can influence the court in which a claim is filed, knowing the full extent of the loss, and amounts involved, is a vital factor in the decision-making process of any personal injury attorney. In Maryland, district courts provided a streamlined procedure for bringing cases to trial, but the amount sought must be 30,000 or less. Circuit court actions, on the other hand, take much longer to get to trial, but the amount that can be recovered is theoretically unlimited [although non-economic damages are capped]

It is worth noting that, despite some key differences between assault and battery, there is one important similarity between the two. Under most circumstances, there is no insurance that will cover the intentional of striking another. Indeed, whether or not there is insurance available -or enough of it available [that is to say enough coverage available] – is a key factor in the valuation of the claim.  Insurance policies, and in particular liability insurance policies, typically have exclusions for intentional torts such as assault and battery. In fact, I’m not aware of any commercially available insurance policy that would cover damages resulting from an assault or a battery. As a practical matter, what this means is that a successful battery plaintiff sometimes faces the daunting prospect of collecting their judgment from the individual, personal resources of the transgressor. While the law certainly does provide the collection of amounts due under a judgment those efforts can frequently prove to be expensive, time consuming, and unfortunately, ultimately unsuccessful.