Happy Threlkiss, sixty-seven years old, who was recently released from the hospital after receiving treatment for a nervous breakdown, retains your firm to sue Richard Ashcroft and Pizzarama, Inc. on her and her niece's behalf for injuries resulting from an incident which occurred on January 7th of the current year. On that date, Happy was walking hand in hand with her three-year-old niece from their car to the Pizzarama restaurant door when Ashcroft, a maintenance worker for Pizzarama, was operating a weed eater and trimming the lawn by the sidewalk that Happy and her niece were walking on. As Happy and her niece approached Ashcroft to enter Pizzarama, Ashcroft looked up at them smiling and then viciously attacked the niece with the weed eater, chewing up her legs and back requiring thirty days hospitalization, over two hundred stitches, and extensive plastic surgery. Happy was immediately admitted to the hospital as well. Investigation shows Ashcroft was working for Pizzarama at the time, but Ashcroft had no known history of violence. Is there a claim for assault and battery, just battery alone or aggravated assault and/or battery on the niece?  

Based off of this information, there seems to be no pre-meditation or emotional reasoning for Ashcroft to attack the three-year-old girl. Since the two victims did not fear for their safety until the attack began, this attack is unlikely to be categorized as an assault. There is a claim for a battery charge, however, due to the serious bodily harm.

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In civil law in the United States and many other countries, people can sue other people or businesses for any injuries which result from the acts of another that cause intentional harm. Any kind of intentional, physical attempt to attack can be classified as an assault if that act causes...

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In civil law in the United States and many other countries, people can sue other people or businesses for any injuries which result from the acts of another that cause intentional harm. Any kind of intentional, physical attempt to attack can be classified as an assault if that act causes someone to fear that he or she is going to suffer imminent harm. It is possible for there to be an assault with no battery in a strict literal sense (even though many people in society casually refer to a completed attack as an assault), especially when the attack is incomplete and no bodily injury results. However, here there does not seem to be any reason to fear. As Happy and her niece approached Ashcroft to enter Pizzarama, Ashcroft merely looked up at them and smiled. He gave them no good reason to fear that they would be attacked soon. Therefore no assault occurred.

In essence, a battery is an intentional act that causes bodily harm, regardless of whether an assault happens. Clearly, Ashcroft intended to harm the niece since he viciously did so, according to the fact pattern. He did not do so accidentally. It's also obvious that the niece suffered bodily harm. Therefore a battery occurred.

Additionally, an aggravated battery is a severe battery that causes highly injurious bodily harm. For example, an intentional attack that involves the attacker using a deadly weapon, device, or toolwhich is a weapon, device, or tool that can cause death or serious bodily harm or is likely to cause death or serious bodily harmwould be considered aggravated battery, especially if the bodily harm is highly injurious. Here, the niece suffered injuries from Ashcroft operating a weed eater, which can cause serious bodily harm in an objective sense. The determination is an objective standard, and subjectively, the attack did cause serious bodily harm for the niece, too. The weed eater chewed up her legs and back, which required 30 days hospitalization, over two hundred stitches, and extensive plastic surgery. Anytime someone spends more than 3 weeks in a hospital bed for an injury instead of at home, the injury is undoubtedly very serious and life threatening.

Interestingly, there is no aggravated assault. It seems surprising since there was aggravated battery, but the reason there is no aggravated assault is because Ashcroft does not seem to intentionally cause harm. Without a fact of anger or rage or frustration, we cannot assume that he intended to cause harm here. He looked and smiled at them. That's all we know. And since the question only asks about the niece, my above analysis only addresses the niece's injuries.

Thus, Happy can successfully sue Ashcroft and Pizzarama, Inc. (Ashcroft was operating in the course of his job duties when he attacked) on her niece's behalf (since the niece is a minor) for battery and aggravated battery, but not assault or aggravated assault. Some states' statutes differentiate between battery and aggravated battery so that two separate claims can be filed, while other states allow for only aggravated battery to be filed and not both battery and aggravated battery, if the battery qualifies.

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