From the opinion:
"This leaves only DePree’s assault claim against Appellee Niroomand. Under Mississippi law, assault occurs where a person “(a)... acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and (b) the other is thereby put in such imminent apprehension.” Webb v. Jackson, 583 So.2d 946, 951 (Miss. 1991). According to DePree, Niroomand “aggressively walk[ed] toward [DePree], yelling at [him], repeatedly referring to [him] as a ‘son-of-a-bitch,’ and shaking papers in his face creat[ing] an apprehension in [DePree] of an imminent harmful or offensive contact.” Appellee Niroomand contends that DePree’s apprehension was not reasonable. We agree. Taken in context, these statements and actions could not create a reasonable apprehension of imminent, harmful contact. DePree and Niroomand had squared off in similar past confrontations without offensive contact. Nothing in the current claim suggests DePree could have reasonably feared Niroomand just because he cursed and rattled papers in DePree’s face. No triable fact issue of an assault arose here."
WOW! As a defense attorney for employers, I like the precedent for those sticky state law intentional tort claims, but I can't see this not getting to a jury on DePree's state of mind. The court grants summary judgment by finding it unreasonable to fear an assault in this context. The Mississippi statute doesn't have the limiting word "reasonable" in it. Assuming, as you must, the actor intended harm, shouldn't he take the victim as he finds him? The issue is the putative victim's state of mind. How can the Court preclude a fact issue on whether there was real apprehension? This is not the same situation where an objective fact, be it distance, physical restraints, or other barriers to harm exist. The court just says any apprehension was unreasonable.
The Restatement does not seem to support this result. To prove assault, a plaintiff must demonstrate that: (1) the defendant placed the plaintiff in fear of harmful contact; (2) the feared contact was imminent; and (3) the defendant intended that the plaintiff fear the imminent harmful contact. Restatement (Second) of Torts 21(1) (1965). If an actor acts with intent to harm and there is an apparent ability and opportunity to carry out the threat immediately, that would seem enough to permit the victim to convince a trier of fact.
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