Brower v. AckerleyFACTS:
The plaintiff, an active civil affair advocate received several harassing phone calls fromthe defendant, who the plaintiff complained to the city was erecting billboards without permitsfrom the city. When the city passed a billboard ordinance law, the plaintiff received two explicit phone calls saying, “I’m going to find out where you live and I’m going to kick your ass” andlater, “You are finished; cut you in your sleep”. The plaintiff made a complaint to the police butthe city filed no criminal charges against the defendant based on the police report. The plaintiff filed a civil suit against the defendant for the emotional distress he suffered from the telephonecalls. The case was dismissed and the plaintiff filed an appeal from the summary judgmentdismissal of his claims.
Whether the physical harm threatened in the phone call were imminent to constitute anassault when the defendant alleges they were going to find out where the plaintiff lives, kickedhis ass and cut him while he sleeps.
To constitute assault, a person must acts intending to cause harmful or offensive contactto another, or an imminent apprehension of that contact and the threat must result toapprehension.
Words alone are not enough to make a person liable for assault unless the wordsare couple with other acts or circumstances that might otherwise put the other person inreasonable apprehension of an imminent harmful or offensive contact with his person.
Here, the defendant’s explicit phone threats “I’m going to find out where youlive and I’m going to kick your ass” and later, “You are finished; cut you in your sleep” were notimminent to indicate that they will be followed by physical harm. Even though the plaintiff suffers emotional damages the phone threat did not create immediacy in a way that would have proven to the court that an acts or circumstances were imminent to cause harmful or offensivecontact to the plaintiff.
Therefore, the defendant is not liable for assault and the dismissal of theassault case is still affirmed.