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32. In a suit against the roommate for assault, will the student prevail?
A college student was asleep in his bed in a college dormitory when his roommate, in a drunken fury, entered their room intending to attack the student with an ice pick while he slept. Fortunately, the phone rang and awakened the student. The roommate retreated quickly and threw the ice pick under his own bed in the same room. The next day, the student heard from friends about the roommate's murderous plans and later found the ice pick under the roommate's bed. Even though the college expelled his roommate, the student remained extremely upset and afraid to sleep.
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A is incorrect. Contact or touching is not required to establish a claim of assault. Assault requires that a plaintiff reasonably apprehend that a harmful or offensive touch is imminent. In this case, however, the student did not have the apprehension necessary for an assault claim because he was asleep.
C is incorrect. Fear is neither necessary nor sufficient to establish a claim for assault. Assault requires a plaintiff to prove that he reasonably apprehended that a harmful or offensive touch was imminent. In this case, because he was asleep, the student did not have the necessary apprehension. Proof of apprehension at the time of the defendant's act is necessary even given the fact that the student became fearful of future harmful contact.
D is incorrect. Proof that the roommate intended to inflict serious harm on the student would satisfy the intent element of a cause of action for assault, but the student cannot establish that he reasonably apprehended an imminent contact, which is another essential element of an assault claim. Because he was asleep, the student did not have the necessary apprehension.