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I am a 53 year old woman recovering from cancer. I was at a resort hotel where I live to enjoy the pool on a hot day with my daughter. A man that looked to be in his his early 60s yelled at us and said we were being obnoxious and loud and that if we did stop he would report us. Mind you this is a resort there were several people yelling laughing and generally having a good time. We did not respond to him. We left the pool and went back to our seats. A few minutes later the staff members who i know very well approached us and said try and keep it down. We had been there for a few hours so my daughter and I decided to call it a day and go home and to be honest that kind of ruined it for us anyway. As I was walking towards the gate to leave this older man and I exchanged some words. He then punched in my eye I tried to defend myself but was no match. he punched me again in the mouth knocking me to the ground. My adult daughter try to help me and he punched her in the face as well.
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Ms. Mcadam,
When you were struck in the face, the attacker arguably committed assault, battery and possibly, and this may surprise you – negligence. The elements of each are:
1. Assault: intent to cause a harmful or offensive contact with a person of another or third person, or an imminent apprehension of such contact, and the victim is put in reasonable apprehension of such contact;
2. Battery: intent to cause a harmful or offensive contact with the person of another, or third person, and a harmful or offensive contact occurs, directly or indirectly;
3. Negligence: failure to use reasonable care, resulting in damage or injury to another. To prevail, a victim must show a defendant owed a duty; breach of that duty; and the breach caused damages.
A factor to consider is whether the attacker would be insured for your claim. If a negligence claim is alleged, the attacker could request any insurance company that insured his home to defend him and pay for your damages up to the limits of his coverage. Bear in mind, insurance companies do not cover damages that result from intentional misconduct. Thus, if the other driver were found liable for assault/battery, most likely any insurance company that insured him would deny coverage. For this reason, you would want to include a claim for negligence, which insurance companies do cover when an insured's negligent conduct causes bodily injuries.
Although the facts presented do not suggest a viable liability theory against the resort, this is something you should discuss with a lawyer.
Michael J. Menicucci - Menicucci Law Group
714-742-6848
Answered on Aug 10th, 2020 at 9:10 AM