Cullison v. Medley – 570 N.E.2d 27 (Ind. 1991)

Case Name: Cullison v. Medley
Plaintiff/Appellant: Dan R. Cullison
Appellees/Defendant: The Medleys
Citation:  570 N.E.2d 27 (Ind. 1991)

Issue: Whether the defendants committed an assault against the plaintiff when they surrounded him in his trailer, had a holstered gun, and threatened him with bodily harm.

Key Facts: The plaintiff was approached in his living room by the five uninvited defendants. One of the defendants had a revolver in a holster strapped to his thigh. He was berated and was called a “pervert” and “sick.” The defendant never withdrew the gun from the holster but “kept grabbing at it with his hand, like he was going to take it out” and the plaintiff thought he was going to be shot by the defendant. As a result of the incidence, the plaintiff suffered chest pains and feared that he was having a heart attack. Additional instances occurred in which the plaintiff had more reason to believe he was in danger including that he learned one of the defendants had shot a man in the past.

Procedural History: The plaintiff sued for a number of torts, including assault. The trial court granted summary judgment on all claims. The Court of Appeals decided that it was not assault, because the defendant never removed his gun from the holster so his threat only constituted conditional language which did not express any present intent to harm. Plaintiff appealed.

Holding: The facts alleged by the plaintiff could entitle him to recover for an assault against the defendants as a jury could reasonably conclude that the defendants intended to frighten the plaintiff.

Rule of Law: The right to be free from the apprehension of imminent harm or offensive contact is protected by the tort of assault. An assault constitutes “a touching of the mind, if not the body.”

Reasoning: The plaintiff testified that he thought the defendant was going to shot him. Apprehension in the context of assault does not mean fear, but rather an awareness of imminent touching that would be a battery if completed. The plaintiff may have had an awareness of this imminent danger during his various encounters with the defendant.

Judgment: The case was remanded to the lower court to determine whether the plaintiff’s apprehension of being shot or otherwise injured was one which would normally be aroused in the mind of a reasonable person.

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