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"Throwing a milkshake/egg/cooked spaghetti on someone is assault."


Let's do a quick Lexplanation on the topic. /1
NOTE: We're speaking generally here, under both the Model Penal Code and the Restatement of Torts. This is not legal advice. Consult an attorney in your Jurisdiction, as You're Jurisdiction May Vary! (YJMV)

First, by Tort definitions you're wrong and right. "Assault" in tort, under the Restatement, requires that someone act as follows:

1) intending to cause either (a) harmful or offensive contact with the person of another OR (b) with the intent to place another person in immediate fear that such contact is imminent.

Note that the litmus is "harmful or offensive contact with the person of another." This isn't "bodily injury," but rather just any non-consented contact. If I threaten to flick your ear and you know it and are aware of it, that could fulfill the first part of the test. /5
We'll come back to this a little later.

The second element of "Assault" is (2) Such apprehension (fear or knowledge) of such offensive or harmful contact results from the intended action.

Note, it isn't ACTUAL FEAR, but rather just "awareness" in most jurisdictions. /6
So, going back to ear flicking:

I want to make you afraid I'll flick your ear. So I come towards you making flicking motions screaming "I'M GONNA FLICKA DEM LOBES!" You see me. You consider earflicking to be harmful or offensive. You are now aware of an imminent flicking. /7
This is the Restatement Definition of "Assault" under Tort law. So, technically, under Tort law, while throwing a milkshake on someone may include assault, the actual contact of milkshake to body is not assault.

Technically. /8
The word you're looking for, in tort law, is "Battery." Battery, under the Restatement, is where a person acts

1) Intending to cause harmful or offensive contact with the person of another; AND
2) Such contact results.

Note, you don't generally have to make contact with the person's body. Things "intrinsic to" the person are generally held to be a part of their body for this purpose. Battery claims have been founded when someone kicks a cane, smacks a plate out of a hand, or yanks clothes. /10
You can basically say that every assault is an attempted or completed battery, so long as the person is aware of it. Note, you CAN have a battery without an assault, though. Like, you know, a sneak flicking. /11
Like, I jump out of an alley behind you and, without saying anything, flick your ear. THEN I scream "I FLICKA'D DEM LOBES!" and run off cackling.

I have not assaulted you, as you were not aware of the danger of such contact, but I have battered you as the contact did occur. /12
So, if someone flings a milkshake on you and you are not aware of it until the creamy goodness splashes all over the front of your Pepe T-shirt, you have not been assaulted, you have been battered.

Under the Restatement, and Tort law.

BUT REMEMBER that Tort law is a CIVIL claim, and that means you have to prove damages for the claim to stand.

Many people enjoy IIED, "Intentional Infliction of Emotional Distress," for a little offensive-but-not-physically-injurious assaults and batteries. /14
That way they can make damages that aren't necessarily apparent ("Special Damages") such as punitives to punish bad behavior.

This is like "mental anguish" and "pain and suffering" and in certain circumstances could have a basis in law.

BUT the law is very clear in that IIED is not a means to gain relief for mere insults or general distress. IIED is reserved for, like, conduct that is WAY out of line. /16
Like, instead of flicking your ear I flick the ear of your infant while making you watch and holding them over a shark tank.

That outrageous and geared to causing you distress given your circumstances from a reasonable person view.

So reality of relief and damages in an assault and battery case involving a milkshake, barring any special injuries like someone breaking out in life-threatening hives as a result of a lactose allergy (see Eggshell Plaintiff Rule)?

A dry cleaning bill. Maybe a "don't do it again" punitive too.

But note, actually throwing the milkshake on someone is NOT NECESSARILY assault, but IS LIKELY a battery. Maybe an actionable one. But not for a lot of money in my non-official opinion. /19


Here I'm gonna flip over to PA law, which tracks the MPC in a lot of places.

Again, consult with an attorney. YJMV. Not a legal opinion. Etc Etc Etc. /21
First, Pennsylvania has a LOT of different types of assault. Simple assault, aggravated assault, assault of a LEO, Assault by a life prisoner, Assault on a referee (we're looking at you Philly). You can find them all at 18 Pa.C.S. 2701, et. seq, our crimes code. /22
Let's start with aggravated assault. That's 18 PA.C.S. 2702, and is generally the highest form of assault most applicable in this scenario unless you're chucking a shake on the referee at an Eagles game and GODDAMMIT PHILLY WHY CAN'T YOU BE NORMAL?

Note that ALL OF THE PROVISIONS of "aggravated assault" in PA require:

1. serious bodily injury
2. Deadly weapons for regular bodily injury
3.injuring someone under 6 in the scope of employment
4. causing serious bodily injury to someone under 13 in the scope of employment. /24
Or, of course, causing "bodily injury" to a huge class of people while they are performing their duties. Like, a HUGE class. Here, I'm just gonna give you screenshots. /25

A milkshake is definitively not a deadly weapon.

And "Bodily injury and serious bodily injury" are defined terms. They aren't amorphous.

. . . /27
"Serious Bodily Injury" is defined under 18 Pa.C.S. 2301 as being an "injury which creates a substantial risk of death or which causes serious, permanent disfigurement" or loss or impairment of some function.

Likewise, "Bodily Injury" is defined as "impairment of physical condition or substantial pain" /29
In fact, we've looked at this in PA before.

In Commonwealth v. Fry, 491 A.2d 843 (Pa. super. 1985); The Interest of JL 475 A.2d 156 (Pa. Super. 1984) the limits were set:

Relying on those determinations (which were "picking up someone is not simple assault" and "elbowing someone without intent to injure is not assault" respectively) the same court, in Commonwealth v. Kirkwood, 520 A.2d 451 (Pa. Super 1987) said as follows:

In that case, someone "invited" another person to dance by grabbing them and violently tossing them around the dance floor, resulting in some minor injury. The court said that alone was not enough to meet "bodily injury" and "intent" for simple assault.


In examining"bodily injury" for aggravated assault in a case where a person kicked a policy officer, one of those officials (like legislature members) we talked about earlier the Court revisited those cases. /35
And generally has held the same way:

If there is no actual physical impairment or pain, or intent to cause such in the act, assault charges will likely not lie. Note, the court did say "Hey, this could be SIMPLE assault instead of AGGRAVATED", but remember that simple still /36
requires a BODILY INJURY, which is, under criminal law, MORE than merely "offensive" contact but rather contact that causes, as set forth in the crimes code, "physical impairment or substantial pain."

So, where a milkshake is thrown on a person, and it does not 1) cause physical impairment (again, amorphous, but we know from cases it's more than just "it touched me") or 2) result in substantial pain, is there a "bodily injury" under the meaning of assault? /38
More than that, though, was the INTENT of the actor in throwing the milkshake to CAUSE such impairment or pain even if it DOES result? Because, remember, crimes require not on the ACT but the Mens Rea (state of mind) requirements to be proven. /29
Arguably, and with reliance on cases, you could say "No. No, throwing a milkshake on someone likely does not satisfy the criminal requirements for an 'assault' under the MPC (and many state laws) because there is no bodily injury"


Is throwing a milkshake on someone assault?

Civilly, maybe but only if they see it coming, otherwise it's a battery with little potential damages, if any.

Criminally, probably not because it won't cause physical impairment or pain. /41
Could you be charged with it? Sure. DA's charge things all the time, because they'll try to make an argument it does meet these requirements. But there's a valid defense (though nothing is a 100% winner).

And, of course, you could be charged with something else, /42
In Commonwealth v. Wertelet, as the Superior Court points out, there are lesser crimes of harassment and such that may be more appropriate.

But those aren't assault.

And we're talking about assault.

Also, please don't go throw a milkshake on a cop.

It likely won't end well for you, no matter what a badger on the internet says.

PS: Again - Consult an attorney. YJMV.
Note: Someone said "The milkshake thing is in the UK! Your discussion is irrelevant!"

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