A.R.B. v. Elkin

98 S.W.3d 99 (Mo. Ct. App. 2003)



Actual injury or damage is not a required element of proof in an assault and battery action. Battery is the willful touching of  another as the consummation of an assault. Whether or not an injury is proven, a plaintiff is at least entitled to nominal damages upon a finding that an assault and battery occurred. An injured party may also recover compensatory damages for bodily pain, humiliation, and mental anguish and other injuries that occur as a necessary and natural consequence of the tortious conduct. There is no fixed measure or standard available to the trier of fact in determining the measure of damages for pain and suffering. The measure of damages is simply that which is fair and reasonable.


Two minors, both siblings, sued their father for two counts of sexual assault and battery after their father was criminally prosecuted for the abuse. On numerous occasions, the Defendant exposed his genitals to his son and daughter and touched their genitals in a sexually suggestive manner. Here, Defendant admitted his liability for assault and battery. As a result of the Defendant’s conduct, the son and daughter both suffered emotional trauma, anxiety, embarrassment, and humiliation that required them to undergo counseling for treatment of same. The trial court determined that the son was only entitled to nominal damages and that the daughter was not entitled to any recovery, because she failed to produce medical evidence of her emotional injuries, which was affirmed on appeal.


Is actual injury or damage a required element of proof in an assault and battery action?




The minors were not obligated to present evidence of the value of their emotional injuries in order to recover more than nominal damages. The trial court erred in failing to award nominal damages to the daughter and consider whether she was entitled to compensatory damages for emotional distress and humiliation. Similarly, the court erred in awarding only nominal damages to the son based on the finding that he presented no evidence of the value of his physical and emotional injuries. Damages need not be proven with exact certainty, but rather it is the fact of damages, not the amount, that must be proven with reasonable certainty. The case was remanded.

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