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Zittrain Torts Casebook
  • 1 I. Assault and Battery: Reconciling Harm with Culpability

    What’s a tort? It’s a wrong that a court is prepared to recognize, usually in the form of ordering the transfer of money (“damages”) from the wrongdoer to the wronged. The court is usually alerted to wrong by the filing of a lawsuit: anyone can walk through the courthouse doors and, subject to the limits explored in civil procedure, call someone else (or, if a company, something) to account.

    The first section of our course deals with that group of torts known as intentional. We’ll review the spectrum of intent that marks the sometimes-fuzzy boundaries among wrongs that are done intentionally, those done merely “negligently,” and others in between, and also have a chance to think about what kinds of damages should be on the table once a wrong is established. What happens when an act that’s only a little bit wrongful, even while intentional, results in unexpectedly large harm?

    We’ll also discuss the sources that courts turn to in order to answer such questions. Rarely, in tort cases, are those sources the ones laypeople expect: statutes passed by legislatures. Without statutes to guide them, what are courts left with?

    • 1.1 I.A. Righting (or Punishing) the Wrong

      • 1.1.1 Vosburg v. Putney--"The Schoolboy Kicker"

        Should defendants be liable for unforeseeable injuries?

        1

        VOSBURG, by guardian ad litem, Respondent, vs. PUTNEY, by guardian ad litem, Appellant.

        Supreme Court of Wisconsin
        80 Wis. 523; 50 N.W. 403

        October 26, Argued.
        November 17, 1891, Decided.

        2

        APPEAL from the Circuit Court for Waukesha County.

        3

        The action was brought to recover damages for an assault and battery, alleged to have been committed by the defendant upon the plaintiff on February 20, 1889. The answer is a general denial. At the date of the alleged assault the plaintiff was a little more than fourteen years of age, and the defendant a little less than twelve years of age.

        4

        The injury complained of was caused by a kick inflicted by defendant upon the leg of the plaintiff, a little below the knee. The transaction occurred in a school-room in Waukesha, during school hours, both parties being pupils in the school. A former trial of the cause resulted in a verdict and judgment for the plaintiff for $2,800. The defendant appealed from such judgment to this court, and the same was reversed for error, and a new trial awarded. 78 Wis. 84.

        5

        The case has been again tried in the circuit court, and the trial resulted in a verdict for plaintiff for $2,500. The facts of the case, as they appeared on both trials, are sufficiently stated in the opinion by Mr. Justice ORTON on the former appeal, and require no repetition.

        6

        On the last trial the jury found a special verdict, as follows: " (1) Had the plaintiff during the month of January, 1889, received an injury just above the knee, which became inflamed, and produced pus? Answer. Yes. (2) Had such injury on the 20th day of February, 1889, nearly healed at the point of the injury ? A. Yes. (3) Was the plaintiff, before said 20th of February, lame, as the result of such injury? A. No. (4) Had the tibia in the plaintiff's right leg become inflamed or diseased to some extent before he received the blow or kick from the defendant? A. No. (5) What was the exciting cause of the injury to the plaintiff's leg? A. Kick. (6) Did the defendant, in touching the plaintiff with his foot, intend to do him any harm? A. No. (7) What sum do you. Assess the damages of the plaintiff? A. $2,500."

        7

        The defendant moved for judgment in his favor on the verdict, and also for a new trial. The plaintiff moved for judgment on the verdict in his favor. The motions of defendant were overruled, and that of the plaintiff granted. Thereupon judgment for plaintiff for $2,500 damages and costs of suit was duly entered. The defendant appeals from the judgment.

        8

        T. W. Haight, attorney, and J. V. Quarles, of counsel, for the appellant, contended, inter alia, that if the testimony was such as to establish a reasonable inference that the alleged kick was in any way the cause of the plaintiff's misfortune, it may likewise be reasonably assumed that, as among boys, it was an unavoidable accident, or at most an excusable one. Harvey v. Dunlap, Hill & Denio Supp. 195; Bullock v. Babcock, 3 Wend. 391; Webster's Dict. ACCIDENT; Barry v. U. 8. Mut. Acc. Ass'n, 23 Fed. Rep. 712; U. S. Mut. Ace. Ass'n v. Barry, 131 U. S. 100; Brown v. Kendall, 6 Cnsh. 292. Negligence is the real ground of possible recovery in a case like this. Conway v. Reed, 66 Mo. 346, 27 Am. Rep. 354. And the rule governing liability as well as damages should be the same as in cases of negligence. Crandall v. Goodrich Transp. Co. 16 Fed. Rep. 75; McGrew v. Stone, 53 Pa. St. 441-2; Putnam v. B. (& 8. A. R. Co. 55 N. Y. 118; Servatius v. PicJiel, 34 Wis. 299; Stewart v. Ripon, 38 id. 590; Ingram v. Rankin, 47 id. 409; Harvey v. Dunlap, Hill & Denio Supp. 195, cited in 51 N. Y. 488; Paxton v. Boyer, 67 111. 132; Morris v. Piatt, 32 Conn. 75; Phillips v. Dickerson, 85 111. 11; Marvin v. ?., M. & St. P. R. Co. 79 Wis. 140. The question of contributory negligence, therefore, on the part of the plaintiff or of his parents, should have been submitted as requested. Setting aside the question of contributory negligence, however, " in order to warrant a finding that negligence, or an act not amounting to a wanton wrong, is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the wrongful act and that it ought to have been foreseen in the light of attending circumstances " Atkinson v Goodrich Transp. Co 60 Wis 141; Mil. & St P. R. Co v. Kellog, 94 U S 469; 2 Thomp. Neg. 1083. That the bone inflammation suffered by plaintiff was not a natural or probable, or ordinary result of defendant’s act is conceded, and therefore a nonsuit should have been granted. Vedder v. Hildreth Wis 427; Cooley Torts 62, 69; Addison Torts (Wood's ed.), 1, 5, and note; Bigelow, Torts, 312; Miles v. A., M. & O. R. Co. Receivers, 4 Hughes, 172; Scheffer v. Railroad Co. 105 U. S. 249; Moak's Underhill Torts, 16; Stewart v. Ripon, 38 Wis. 590; Sharp v. Powell, L. R. 7 C. P. 258. There being no evil intent or its equivalent shown, there should be no recovery. 2 Greenl. Ev. sees. 82-85; 2 Addison, Torts, sec. 790; Cooley, Torts, 162; Coward v. Baddeley, 4 Hurl. & N. 478; Christopherson v. Bare, 11 Q. B. 473; Hoffman v. Eppers, 41 Wis. 251; Krall v. Lull, 49 id. 405; Alderson v. Waistell, 1 Car. & K. 358; Brown v. Kendall, 6 Cush. 292; Morris v. Piatt, 32 Conn. 75-86. The motive and purpose being innocent and harmless, the law implies a license for the defendant's act. Hooker v. ?. M. & St. P. R. Co. 76 Wis. 546; Adam v. Freeman, 12 Johns. 408; Cooley, Torts, 303, 163; Thayer v. Jarvis, 44 Wis. 390.

        9

        For the respondent there was a brief by Ryan & Merton, and oral argument by T. E Ryan. They argued, among other things, that where an infant commits a wrong to another, whether wilfully or negligently, or by the direct application of force, or the indirect results of force, the law, while regarding his youth or inexperience and making due allowance for absence of evil intent or capacity for evil intent, proceeds upon the reason that damages directly resulting to another from the wrong he has committed ought to be recompensed. Cooley, Torts, 98, 99; Hutching v. Engel, 17 Wis. 230; School Dist. v. Bragdon, 23 N. H. 507; Zouch v. Parsons, 3 Burr. 1802; Jennings v. Rundall, 8 Term R.335; Conway v. Reed, 66 Mo. 346; Oliver v. McClellan 21 Ala. 675; Barham v. Tuberville, 1 Swan (Tenn.), 437; Bullock v. Babcock, 3 Wend. 391; Peterson v. Haffner, 59 Ind. 130 Conklini) Thompson, 29 Barb. 218; Neal v. Gillett. 23 Conn 437 The party who commits a trespass or other wrongful act is liable for all the direct injury resulting from such act although such resulting injury could not have been contemp'lated as the probable result 3 Suth. Dam. 714; McNamara v. Clintonville, 62 Wis 207; Oliver v. La Valle, 36 id 592; Stewart v. Ripon 38 id. 584; Brown v C., M & St. P. R. Co. 54 id. 362; Ehrgott v Mayor, 96 N.Y. 280. It being shown that the defendant knowingly and consciously kicked the plaintiff and injured him, the nonsuit was properly denied.

        11

        LYON, J. Several errors are assigned, only three of which will be considered.

        12

        1. The jury having found that the defendant, in touching the plaintiff with his foot, did not intend to do him any harm, counsel for defendant maintain that the plaintiff has no cause of action, and that defendant's motion for judgment on the special verdict should have been granted. In support of this proposition counsel quote from 2 Greenl. Ev. § 83, the rule that " the intention to do harm is of the essence of an assault." Such is the rule, no doubt, in actions or prosecutions for mere assaults. But this is an action to recover damages for an alleged assault and battery. In such case the rule is correctly stated, in many of the authorities cited by counsel, that plaintiff must show either that the intention was unlawful, or that the defendant is in fault. If the intended act is unlawful, the inten-tion to commit it must necessarily be unlawful. Hence, as applied to this case, if the kicking of the plaintiff by the defendant was an unlawful act, the intention of defendant to kick him was also unlawful.

        13

        Had the parties been upon the play-grounds of the school, engaged in the usual boyish sports, the defendant being free from malice, wantonness, or negligence, and intending no harm to plaintiff in what he did, we should hesitate to hold the act of the defendant unlawful, or that he could be held liable in this action. Some consideration is due to the implied license of the play-grounds. But it appears that the injury was inflicted in the school, after it had been called to order by the teacher, and after the regular exercises of the school had commenced. Under these circumstances, no implied license to do the act complained of existed, and such act was a violation of the order and decorum of the school, and necessarily unlawful. Hence we are of the opinion that, under the evidence and verdict, the action may be sustained.

        14

        2. The plaintiff testified, as a witness in his own behalf, as to the circumstances of the alleged injury inflicted upon him by the defendant, and also in regard to the wound he received in January, near the same knee, mentioned in the special verdict. The defendant claimed that such wound was the proximate cause of the injury to plaintiff's leg, in that it produced a diseased condition of the bone, which disease was in active progress when he received the kick and that such kick did nothing more than to change the location, and perhaps somewhat hasten the progress, of the disease. The testimony of Dr. Bacon, a witness for plaintiff (who was plaintiff's attending physician), elicited on cross- examination tends to some extent to establish such claim. Dr. Bacon first saw the injured leg on February 25th, and Dr. Philler also one of the plaintiff's witnesses, first saw it March 8th. Dr Philler was called as a witness after the examination of the plaintiff and Dr Bacon. On his direct examination he testified as follows: " I heard the testimony of Andrew Vosburg in regard to how he received the kick, February 20th, from his playmate. I heard read the testimony of Miss More and heard where he said he received this kick on that day " (Miss More had already testified that she was the teacher of the school and saw defendant standing in the aisle by his seat and' kicking across the aisle, hitting the plaintiff.) The following question was then propounded to Dr Philler: “After hearing that testimony, and what you know fo the case of the boy, seeing it on the 8th day of March, what, in your opinion, was the exciting cause that produced the inflammation that you saw in that boy’s leg on that day?” An objection to this question was overruled, and the witness answered: “The exciting cause was the injury received at that day by the kick on the shin-bone.”

        15

        It will be observed that the above question to Dr. Philler calls for his opinion as a medical expert, based in part upon the testimony of the plaintiff, as to what was the proximate cause of the injury to plaintiff's leg. The plaintiff testified to two wounds upon his leg, either of which might have been such proximate cause. Without taking both of these wounds into consideration, the expert could give no intelligent or reliable opinion as to which of them caused the injury complained of; yet, in the hypothetical question propounded to him, one of these probable causes was excluded from the consideration of the witness and he was required to give his opinion upon an imperfect and insufficient hypothesis,—one which excluded from his consideration a material fact essential to an intelligent opinion. A consideration by the witness of the wound received by the plaintiff in January being thus prevented, the witness had but one fact upon which to base his opinion, to wit, the fact that defendant kicked plaintiff on the shin-bone. Based, as it necessarilv was, on that fact alone, the opinion of Dr Philler that the kick caused the injury was inevitable, when, had the proper hypothesis been submitted to him, his opinion might have been different. The answer of Dr. Philler to the hypothetical question put to him may have had, probably did have, a controlling influence with the jury, for they found by their verdict that his opinion was correct.

        16

        Surely there can be no rule of evidence which will tolerate a hypothetical question to an expert, calling for his opinion in a matter vital to the case, which excludes from his consideration facts already proved by a witness upon whose testimony such hypothetical question is based, when a consideration of such facts by the expert is absolutely essential to enable him to form an intelligent opinion concerning such matter. The objection to the question put to Philler should have been sustained. The error in permitting the witness to answer the question is material, and necessarily fatal to the judgment.

        17

        3. Certain questions were proposed on behalf of defendant to be submitted to the jury, founded upon the theory that only such damages could be recovered as the defendant might reasonably be supposed to have contemplated as likely to result from his kicking the plaintiff. The court refused to submit such questions to the jury. The ruling was correct. The rule of damages in actions for torts was held in Brown v. C, M. & St. P. P. Co. 54 Wis. 342, to be that the wrong-doer is liable for all injuries resulting directly from the wrongful act whether they could or could not have been foreseen by him. The chief justice and the writer of this opinion dissented from the judgment in that case, chiefly because we were of the opinion that the complaint stated a cause of action ex contractu and not ex delicto, and hence that a different rule of damages—the rule here contended for—was applicable. We did not question that the rule in actions for tort "was correctly stated. That case rules this on the question of damages.

        18

        The remaining errors assigned are upon the rulings of the court on objections to testimony. These rulings are not very likely to be repeated on another trial, and are not of sufficient importance to require a review of them on this appeal.

        19

        By the Court.— The judgment of the circuit court is reversed, and the cause will be remanded for a new trial.

      • 1.1.2 Alcorn v. Mitchell--"The Angry Spitter"

        [Refer to this case's description in playlist I.B. for more facts.]

        1
        63 Ill. 553
        Supreme Court of Illinois.
        WILLIAM E. ALCORN
        v.
        ANDREW J. MITCHELL.

        June Term, 1872.

        2

        APPEAL from the Circuit Court of Marion county; the Hon. SILAS L. BRYAN, Judge, presiding.

        3

        Messrs. SHAW, HAYWARD & SMITH, for the appellant.

        4

        Messrs. WILSON & HUTCHINSON, and Mr. JONATHAN PALMER, for the appellee.

        5

        Opinion

        6

        Mr. JUSTICE SHELDON delivered the opinion of the Court:

        7

        The ground mainly relied on for the reversal of the judgment in this case is, that the damages are excessive, being $1000.

        8

        The case presented is this: There was a trial of an action of trespass between the parties, wherein the appellee was defendant, in the circuit court of Jasper county. At the close of the trial the court adjourned, and, immediately upon the adjournment, in the court room, in the presence of a large number of persons, the appellant deliberately spat in the face of the appellee.

        9

        So long as damages are allowable in any civil case, by way of punishment or for the sake of example, the present, of all cases, would seem to be a most fit one for the award of such damages.

        10

        The act in question was one of the greatest indignity, highly provocative of retaliation by force, and the law, as far as it may, should afford substantial protection against such outrages, in the way of liberal damages, that the public tranquillity may be preserved by saving the necessity of resort to personal violence as the only means of redress.

        11

        Suitors, in the assertion of their rights, should be allowed approach to the temple of justice without incurring there exposure to such disgraceful indignities, in the very presence of its ministers.

        12

        It is customary to instruct juries that they may give vindictive damages where there are circumstances of malice, wilfulness, wantonness, outrage and indignity attending the wrong complained of. The act in question was wholly made up of such qualities. It was one of pure malignity, done for the mere purpose of insult and indignity.

        13

        An exasperated suitor has indulged the gratification of his malignant feelings in this despicable mode. The act was the very refinement of malice. The defendant appears to be a man of wealth; we can not say that he has been made to pay too dearly for the indulgence.

        14

        We have carefully looked into the instructions given and refused, and do not perceive any substantial error in respect to them.

        15

        The judgment must be affirmed.

        16

        Judgment affirmed.

    • 1.2 I.B. Intentional, Negligent, or Something in Between?

      • 1.2.1 Picard v. Barry Pontiac-Buick, Inc.--"The Camera Toucher"

        [Refer to this case's description in playlist I.A. for more facts.]

        1
        654 A.2d 690 (1995)
        2
        Victoria A. PICARD
        v.
        BARRY PONTIAC-BUICK, INC. et al.
        3
        93-221-A.
        4

        Supreme Court of Rhode Island.

        5
        February 9, 1995.
        6

        691*691 Peter M. Cosel, Donato D'Andrea, Newport, for plaintiff.

        7

        Lauren E. Jones, Jones Associates, Brenda Coville Harrigan, Gunning, LaFazia & Gnys, Robert S. Thurston, Jones Associates, Providence, for defendant.

        9
        OPINION
        10

        LEDERBERG, Justice.

        11

        This case came before the Supreme Court on the appeal of Jesse Silvia (defendant) from a judgment against him for assault and battery, for compensatory damages in the amount of $60,346, and for punitive damages in the amount of $6,350, plus interest and costs. We affirm the judgment in respect to the assault and battery but sustain the defendant's appeal in respect to damages. We vacate the award of damages and remand the case to the Superior Court for a new trial on damages.

        13
        FACTS AND PROCEDURAL HISTORY
        14

        This case began eight years ago with a broken signal light. The plaintiff, Victorie A. Picard, brought her mother's car to Barry Pontiac-Buick, Inc. (Barry Pontiac)[1] in Newport, Rhode Island, where the car had been purchased, to have the light repaired. While the car was being repaired, plaintiff decided to have its annual inspection performed as well. The car failed this inspection because, according to a Barry Pontiac representative, the brakes needed to be replaced. The plaintiff brought the car to Kent's Alignment Service (Kent's Alignment), also located in Newport, where the car passed inspection.

        15

        The plaintiff then contacted a local television news "troubleshooter" reporter, presumably to report her experience at the two inspection sites. Shortly after Kent's Alignment had inspected plaintiff's car, Barry Pontiac phoned Kent's Alignment to ask that the car be checked again and the sticker removed because the brakes "were bad." Accordingly Edward Kent (Kent), the owner of Kent's Alignment, set January 27, 1987, as the date that plaintiff, accompanied by her goddaughter Kristen Ann Seyster (Seyster), returned with the car to Kent's garage.

        16

        Kent's Alignment was divided into a garage area separated by a glass partition from an office area. At the time of the incident at issue in this case, Seyster was in the office, while plaintiff was in the garage. After Kent inspected the car, he told plaintiff that he had been asked to call Barry Pontiac which also wished to inspect the brakes. Ray Stevens (Stevens), the service manager at Barry Pontiac arrived at Kent's Alignment, accompanied by defendant, who was employed by Barry Pontiac.

        17

        692*692 The defendant began to inspect the brakes. He and plaintiff gave vastly different descriptions of what next happened. The plaintiff said she began to take a picture of defendant as he was facing away from her, presumably as evidence for the troubleshooter report. The plaintiff testified that she did intend to photograph defendant although the photograph was not intended to identify defendant. The photograph did, however, clearly show defendant fully facing the camera, standing upright while pointing his index finger at plaintiff. After the camera snapped, the events that gave rise to this case occurred.

        18

        The plaintiff testified that defendant "lunged" at her and "grabbed [her] around around [sic] the shoulders,"[2] although plaintiff did not experience any pain. The plaintiff then testified on cross-examination that after defendant grabbed her by both her shoulders, she and defendant "spun around wrestling." According to plaintiff, defendant released her after someone said, "let her go." The plaintiff then left the garage with her goddaughter.

        19

        Seyster and Stevens also testified at trial, and Kent's deposition was admitted into evidence. Seyster, who had remained in the office area, testified that she saw defendant "grab her [plaintiff's] left shoulder and try to get the picture with his other hand," but defendant did not touch either the photograph or the camera. Seyster further testified that defendant had reached for plaintiff with only one arm, not two, and that plaintiff was not spun around, shaken, picked up or thrown against a wall. Stevens testified that he did not see what transpired because his back was turned. He did, however, remember defendant "hollering" that he did not want his picture taken. Kent stated that after plaintiff came out of the office and attempted to photograph defendant, he heard defendant say something such as "don't take my picture." Kent then saw defendant reach for the camera and touch it, but saw no contact between plaintiff and defendant, nor did he see defendant lift plaintiff.

        20

        The defendant testified that as he was looking at the car, plaintiff had come up behind him and aimed the camera toward him. He then pointed at plaintiff and said, "who gave you permission to take my picture?" then walked around the car to plaintiff, placed his index finger on the camera and again asked, "who gave you permission to take my picture?" The defendant denied grabbing plaintiff, touching her body, threatening her or making any threatening gestures, scuffling with her or reaching for the photograph. He also testified that he did not intend to cause plaintiff any bodily harm.

        21

        The plaintiff testified that although she did not experience any pain immediately after the incident, she did experience numbness in her hips and legs. However, about a week after the incident, plaintiff visited William E. Kenney, M.D. (Kenney) because of "pain radiating down my right leg * * *," pain that reportedly continued periodically up to the time of trial. Kenney examined plaintiff and advised a CAT scan. W.R. Courey, M.D., of St. Anne's Hospital in Fall River, Massachusetts, prepared a radiology report on April 17, 1987, that described "[g]eneralized degenerative bulging of the annulus at [L-3-L-4, L-4-L-5 and L-5-S-1]." Kenney himself saw plaintiff five times in his office between January 30, 1987, and May 26, 1987, each time with a $30 charge.

        22

        On April 28, 1987, Kenney wrote a "To Whom it May Concern" letter, in which he stated:

        23
        "This patient had had a ruptured intervertebra disc on the left which was apparent in October or earlier of 1985. She had not complained of her right lower extremity, however, on 1/30/87 she was seen with a history that she had been assaulted on 1/22/87 and had pain in the right lower extremity. The CAT scan taken at St. Anne's Hospital on 4/17/87 reveals nerve root pressure on the right at L5-S1 level. 693*693 Therefore, this change is probably causally related with the assault."
        24

        On June 1, 1987, Kenney wrote a second "To Whom it May Concern" letter, stating: "The question has been raised as to whether or not the pain in the right leg is permanent. The answer is that it is probably not permanent, but there is no way that I have of knowing for sure whether it is permanent or not." (Emphasis added.) But, twenty-four days later, with no evidence of an intervening examination of plaintiff, Kenney, on June 25, 1987, wrote to plaintiff's attorney:

        25
        "It is apparent that the patient sustained a ruptured disc on the right at L5-S1 found by CAT scan on 4/17/87, following an assault on 1/22/87. The ruptured disc at L5-S1 on the right is a permanent injury." (Emphasis added.)
        26

        The injured area identified by Kenney was the right L5-S1 region of the spinal column. The defendant introduced into evidence a Newport Hospital Report dated March 26, 1985, which showed a left-sided disc herniation at the L5-S1 locus. The plaintiff confirmed at trial that she had had a history of back problems for at least ten years prior to her encounter with defendant.

        27

        On January 6, 1993, some five and one-half years after he last examined plaintiff, Kenney again wrote to plaintiff's counsel and stated:

        28
        "To a reasonable degree of medical certainty, in my opinion, the ruptured disc Victorie Picard sustained at L5-S1 was proximately caused by the assault of January 22, 1987. The injury sustained on January 22, 1987, in my opinion, stated with a reasonable degree of medical certainty is permanent in nature."
        29

        On January 11, 1993, Kenney swore an affidavit entitled: "Amended Affidavit Under Section 9-17-27 [sic] of the Rhode Island General Laws Entitled `Evidence of Charges for Medical and Hospital Services'" that amended his affidavit of 1987. Attached to the amended affidavit were Kenney's letter of January 6, 1993, the radiology report from St. Anne's Hospital dated April 17, 1987, and the receipts from plaintiff's five visits to Kenney's office. The original affidavit had contained receipts of the office visits, Kenney's letters of June 25, 1987, June 1, 1987, and April 28, 1987, the radiology report and a letter of May 5, 1987, describing the radiology report.

        30

        The amended affidavit stated in part:

        31
        "Now comes William E. Kenney, M.D. and makes affidavit under oath and says as follows: * * *
        32
        (3) That the attached record of examination of the person examined reflects my true opinion with respect to the diagnosis, prognosis, and proximate cause of the conditions diagnosed.
        33
        (4) That to a reasonable degree of medical certainty, the condition detailed in the attached record, related in the history provided by the patient, was the proximate result of the incident which occurred on January 22, 1987."
        34

        Other than plaintiff's testimony, these affidavits and their appended records and letters, admitted into evidence by the trial judge, constituted the only medical evidence that documented plaintiff's alleged injury. Kenney was not deposed, nor did he testify at trial.

        35

        The plaintiff prevailed at trial and was awarded compensatory damages in the amount of $60,346. Because the trial justice found that defendant's conduct was "sufficiently egrigious [sic]," punitive damages in the amount of $6,350 were imposed, for a total judgment of $66,696, plus interest and costs. The defendant appealed the judgment, arguing (1) that plaintiff failed to prove an assault and battery; (2) that plaintiff failed to prove that defendant's actions in fact caused the alleged harm to her; and (3) that the damage awards were grossly excessive and inappropriate as a matter of law.

        37
        STANDARD OF REVIEW
        38

        The findings made by a trial justice, sitting without a jury, are accorded great weight. Raheb v. Lemenski, 115 R.I. 576, 579, 350 A.2d 397, 399 (1976). These findings will not be disturbed on appeal absent a determination that the trial justice misconceived or overlooked relevant evidence or was otherwise clearly wrong. Rego Displays, 694*694 Inc. v. Fournier, 119 R.I. 469, 473, 379 A.2d 1098, 1100-01 (1977); Barattini v. McGovern, 110 R.I. 360, 362, 292 A.2d 860, 861 (1972).

        40
        ASSAULT AND BATTERY
        41

        The defendant contended that plaintiff failed to prove the occurrence of an assault because plaintiff was not placed in reasonable fear of imminent bodily harm. Further, defendant argued that plaintiff failed to prove a battery because the evidence failed to establish that defendant intended to inflict an unconsented touching of plaintiff. We disagree with both contentions.

        42

        Assault and battery are separate acts, usually arising from the same transaction, each having independent significance. Proffitt v. Ricci, 463 A.2d 514, 517 (R.I. 1983). "An assault is a physical act of a threatening nature or an offer of corporal injury which puts an individual in reasonable fear of imminent bodily harm." Id. It is a plaintiff's apprehension of injury which renders a defendant's act compensable. Id.; see also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 10, at 43 (5th ed. 1984) ("[t]he damages recoverable for [assault] are those for the plaintiff's mental disturbance, including fright, humiliation and the like, as well as any physical illness which may result from them"). This apprehension must be the type of fear normally aroused in the mind of a reasonable person. Keeton et al., supra, at 44.

        43

        The plaintiff testified that she was frightened by defendant's actions. A review of the attendant circumstances attests that such a reaction was reasonable. The defendant admitted approaching plaintiff, and the photograph taken that day clearly showed defendant pointing his finger at plaintiff as defendant approached her. Because plaintiff's apprehension of imminent bodily harm was reasonable at that point, plaintiff has established a prima facie case of assault.

        44

        We have defined battery as an act that was intended to cause, and in fact did cause, "an offensive contact with or unconsented touching of or trauma upon the body of another, thereby generally resulting in the consummation of the assault. * * * An intent to injure plaintiff, however, is unnecessary in a situation in which a defendant willfully sets in motion a force that in its ordinary course causes the injury." Proffitt, 463 A.2d at 517.

        45

        In the instant case, defendant contended that a battery did not occur because defendant did not intend to touch or injure plaintiff. Rather, defendant argued, the evidence showed that he intended to touch plaintiff's camera, not plaintiff's person, and therefore the contact was insufficient to prove battery. With this contention we must disagree. Even if this court were to accept defendant's characterization of the incident, a battery had nonetheless occurred. The defendant failed to prove that his actions on January 22, 1987, were accidental or involuntary. Therefore, defendant's offensive contact with an object attached to or identified with plaintiff's body was sufficient to constitute a battery. As noted in the comments to the Restatement (Second) Torts § 18, comment c at 31 (1965):

        46
        "Unpermitted and intentional contacts with anything so connected with the body as to be customarily regarded as part of the other's person and therefore as partaking of its inviolability is actionable as an offensive contact with his person. There are some things such as clothing or a cane or, indeed, anything directly grasped by the hand which are so intimately connected with one's body as to be universally regarded as part of the person." (Emphasis added.)
        47

        The defendant's contact with the camera clutched in plaintiff's hand was thus sufficient to constitute a battery. We conclude, therefore, that plaintiff has proven the elements of assault and battery.

        49
        PROOF OF CAUSATION
        50

        The defendant next asserted that evidence was insufficient to prove that his actions caused plaintiff's condition because the medical evidence submitted by plaintiff was 695*695 not competent.[3] We agree.

        51

        At the start of trial, defendant objected to the admission of Kenney's January 11, 1993 affidavit which refers to Kenney's opinions to the permanency of plaintiff's condition. The record disclosed that Kenney last examined plaintiff on May 26, 1987, but included no evidence that Kenney examined plaintiff at any time during the ensuing five and one-half year period before executing the affidavit. At the time of trial Kenney had been retired for six years and resided in Massachusetts. It is an impermissible affront to reason to uphold Kenney's affidavit which attested to the cause and permanency of injury in a patient whom he had not treated in five and one-half years and whose medical file he apparently did not consult at the time he signed the affidavit.[4] Furthermore, the material which supported the affidavit was substantively inconsistent. Kenney's 1993 letter stated that the injury to plaintiff was "permanent in nature." However, in support of the 1987 affidavit, shortly after his last examination of plaintiff, he wrote on June 1, 1987, that the injury was "probably not permanent." Yet, twenty-four days later, without reexamining plaintiff, he stated in a letter to plaintiff's attorney, that the injury was permanent, a position which he maintained until 1993, though he never reexamined plaintiff in the intervening five and one-half years.

        52

        In Parrillo v. F.W. Woolworth Co., 518 A.2d 354, 355 (R.I. 1986), this court stated that, "The substitution of a written affidavit for live medical testimony * * * in no way relaxes the minimum requirements for the admission of competent medical testimony." Further, we have noted that, "Although all litigants have the right to take advantage of the provisions of § 9-19-27, they run the risk of a failure of proof unless the medical picture is sufficiently clear and unambiguous to lend itself to this simplified manner of proof." Id. at 356. In the instant case, the conflicting descriptions by Kenney concerning the permanency of plaintiff's injury and the length of time between his examinations and the production of the amended affidavit conclusively demonstrate that the proof was not "clear and unambiguous." Id. Our careful review of the record failed to disclose conclusive evidence that plaintiff's alleged injuries were caused by defendant's assault and battery and that such alleged injury was permanent. Indeed, the trial justice stated that "the disability that she [plaintiff] suffers under is per the medical opinion permanent, or at least was at the time of the opinion." The trial justice's apparent doubt as to whether the injury was permanent at the time of trial illustrated further plaintiff's failure to present sufficient medical evidence under this simplified manner of proof. See Parrillo, 518 A.2d at 356. We therefore conclude that the medical evidence presented by plaintiff was incompetent to establish that the assault and battery by defendant was the proximate cause of plaintiff's alleged injury.

        54
        DAMAGES

        56
        A. Compensatory Damages
        57

        The defendant next argued that the trial justice's award of compensatory damages in the amount of $60,346 was grossly excessive. We agree.

        58

        The trial justice based the award of compensatory damages in part on the pain and suffering alleged by plaintiff, whom the trial justice found credible and candid. The trial justice found that the inconsistencies in the testimony of the witnesses presented by plaintiff were "not significant in [the] Court's 696*696 mind." Such a conclusion, however, ignored the contradictions between the witnesses' testimony and the internal inconsistencies of plaintiff's own testimony. Indeed, our review of the record revealed that plaintiff's testimony was remarkably malleable.[5] The plaintiff transformed a slight touching (as it was characterized by all witnesses except plaintiff) into a major assault and battery.

        59

        In addition to the inconsistencies in plaintiff's testimony concerning the event, plaintiff's testimony in respect to her pain and suffering was not credible, given her medical disabilities that predated the alleged additional injury that she claimed to have sustained as a result of the assault and battery. The trial justice was clearly wrong in relying on plaintiff's testimony concerning her pain and suffering absent additional evidence to establish the specific pain and suffering that developed from this contact with defendant.

        60

        This court will not disturb an award for pain and suffering unless the award "`shocks the conscience' or is grossly excessive." Proffitt, 463 A.2d at 519 (citing Bruno v. Caianiello, 121 R.I. 913, 917, 404 A.2d 62, 65 (1979)). Given the absence of competent medical evidence of causation and given that plaintiff's testimony concerning the assault and her subsequent injuries was not credible, the award of $60,346 in compensatory damages was clearly excessive and out of all proportion to the alleged injury. Consequently, we vacate the award.

        62
        B. Punitive Damages
        63

        The defendant also argued that punitive damages should not have been awarded because the trial justice did not find that defendant acted with malice or in bad faith as directed by Palmisano v. Toth, 624 A.2d 314, 318 (R.I. 1993). Disfavored in the law, an award of punitive damages is an extraordinary sanction permitted only with great caution and within narrow limits. Id. In the instant case there was no proof of malice or bad faith nor was there a finding that defendant acted with malice. Consequently, the award of punitive damages in this case was not consistent with the purpose of such damages, namely, the deterrence of a defendant's "willfulness, recklessness or wickedness," because evidence of these factors was not presented. Id. (quoting Sherman v. McDermott, 114 R.I. 107, 109, 329 A.2d 195, 196 (1974)).

        64

        In conclusion, we deny in part and sustain in part the defendant's appeal. We affirm the judgment of the Superior Court in respect to the defendant's commission of assault and battery, but we vacate the awards of compensatory and punitive damages. We remand the case to the Superior Court for a new trial on the damages sustained by the plaintiff.

        66

        [1] After plaintiff rested, Barry Pontiac moved to dismiss the suit against it pursuant to Rule 41(b)(2) of the Superior Court Rules of Civil Procedure. The trial justice granted the motion, and therefore, Barry Pontiac is not a party to this appeal.

        68

        [2] In a statement describing the incident to the Newport Police, plaintiff stated, "HE GRABBED MY COAT[.] I LUNGED BACKWARD HURTING MY BACK[.]" In a Social Security Administration "Reconsideration Disability Report" dated March 20, 1987, plaintiff stated that she had been "attack [sic] by a merchanic [sic] from Barry Pontiac" and that she had been "[t]hrown against a wall at Kents [sic] garage [.]" The plaintiff testified at trial that, notwithstanding the Disability Report, she had not been thrown against a wall.

        70

        [3] The affidavit was admitted under G.L. 1956 (1985 Reenactment) § 9-19-27, which states in pertinent part:

        71

        "(a) [I]n any proceeding commenced in any court * * *, an itemized bill and reports, including hospital medical records, relating to medical * * * services * * * and/or any report of any examination of said injured person, including, but not limited to, hospital medical records subscribed and sworn to * * * by the physician * * * shall be admissible as evidence of * * * the necessity of such services or treatment, the diagnosis of said physician * * *, the prognosis of such physician * * * the opinion of such physician * * * as to proximate cause of the condition so diagnosed, the opinion of such physician * * * as to disability or incapacity, if any, proximately resulting from the condition so diagnosed * * *."

        73

        [4] Counsel for Barry Pontiac reported at trial that Kenney had retired six years earlier and had sent his medical records to "dead files."

        75

        [5] The following exchanges between plaintiff and defense counsel illustrate the nature of plaintiff's testimony:

        76

        "Q So it's possible that you told Dr. Kenney that you were shaken by the assailant?

        77

        "A Well, I was shaken, but maybe not in the terms — but I was shook up. That's it. You know what I mean. I was shook up mentally. I was ascared [sic]."

        78

        and again,

        79

        "Q Are you claiming that he [Silvia] physically picked you up and swung you around?

        80

        "A Well, my feet wasn't hitting the floor. * * *.

        81

        "Q So in addition to Mr. Silvia grabbing you by the shoulders he physically lifted you off the ground, is that correct?

        82

        "A I can't say for sure because I felt dizzy. The room was spinning. So I felt like I was off the floor, but I don't know because I was just moving around fast."

      • 1.2.2 Garratt v. Dailey--"The Chair-Pulling Five Year Old"

        [Refer to this case’s description in playlist I.A. for more facts.]

        2

        Page 197

        5
        46 Wn.2d 197

        8
        279 P.2d 1091

        11
        Ruth GARRATT, Appellant,
        v.
        Brian DAILEY, a Minor, by George S. Dalley, his Guardian ad
        Litem, Respondent.

        14
        No. 32841.

        17
        Supreme Court of Washington, Department 2.

        20
        Feb. 14, 1955.
        Rehearing Denied May 3, 1955.
        22

        Page 198

        24

                [279 P.2d 1092] Kennett, McCutcheon & Soderland, Seattle, James P. Healy, Tacoma, for appellant.

        26

                Frederick J. Orth, Rode, Cook, Watkins & Orth, Seattle, for respondent.

        28

                HILL, Justice.

        30

                The liability of an infant for an alleged battery is presented to this court for the first time. Brian

        32

        Page 199

        34

        'III. * * * that while Naomi Garratt and Brian Dailey were in the back yard the plaintiff, Ruth Garratt, came out of her house into the back yard. Some time subsequent thereto defendant, Brian Dailey, picked up a lightly built wood and canvas lawn chair which was then and there located in the back yard of the above described premises, moved it sideways a few feet and seated himself therein, at which time he discovered the plaintiff, Ruth Garratt, about to sit down at the place where the lawn chair had formerly been, at which time he hurriedly got up from the chair and attempted to move it toward Ruth Garratt to aid her in sitting down in the chair; that due to the defendant's small size and lack of dexterity he was unable to get the lawn chair under the plaintiff in time to prevent her from falling to the ground. That plaintiff fell to the ground and sustained a fracture of her hip, and other injuries and damages as hereinafter set forth.

        36

        'IV. That the preponderance of the evidence in this case establishes that when the defendant, Brian Dailey, moved the chair in question he did not have any wilful or unlawful purpose in doing so; that he did not have any intent to injure the plaintiff, or any intent to bring about any unauthorized or offensive contact with her person or any objects appurtenant thereto; that the circumstances which immediately preceded the fall of the plaintiff established that the defendant, Brian Dailey, did not have purpose, intent or design to perform a prank or to effect an assault and battery upon the person of the plaintiff.' (Italics ours, for a purpose hereinafter indicated.)

        38

                It is conceded that Ruth Garratt's fall resulted in a fractured hip and other painful and serious injuries. To obviate

        40

        Page 200

        42

                The authorities generally, but with certain notable exceptions, see Bohlen, 'Liability in Tort of Infants and Insane Persons,' 23 Mich.L.Rev. 9, state that when a minor has committed a tort with force he is liable to be proceeded against as any other person would be. Paul v. Hummel, 1868, 43 Mo. 119, 97 Am.Dec. 381; Huchting v. Engel, 1863, 17 Wis. 230, 84 Am.Dec. 741; Briese v. Maechtle, 1911, 146 Wis. 89, 130 N.W. 893, 35 L.R.A.,N.S., 574; 1 Cooley on Torts (4th ed.) 194, § 66; Prosser on Torts 1085, § 108; 2 Kent's Commentaries 241; 27 Am.Jur. 812, Infants, § 90.

        44

                In our analysis of the applicable law, we start with the basis premise that Brian, whether five or fifty-five, must have committed some wrongful act before he could be liable for appellant's injuries.

        46

                The trial court's finding that Brian was a visitor in the Garratt back yard is supported by the evidence and negatives appellant's assertion that Brian was a trespasser and had no right to touch, move, or sit in any chair in that yard, and that contention will not receive further consideration.

        48

                It is urged that Brian's action in moving the chair constituted a battery. A definition (not all-inclusive but sufficient for out purpose) of a battery is the intentional infliction of a harmful bodily contact upon another. The rule that determines liability for battery is given in 1 Restatement, Torts, 29, § 13, as:

        50

        'An act which, directly or indirectly, is the legal cause of a harmful contact with another's person makes the actor liable to the other, if

        52

        '(a) the act is done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to the other or a third person, and

        54

        '(b) the contact is not consented to by the other or the

        56

        Page 201

        58

        '(c) the contact is not otherwise privileged.'

        60

                We have in this case no question of consent or privilege. We therefore proceed to an immediate consideration of intent and its place in the law of battery. In the comment on clause (a), the Restatement says:

        62

        'Character of actor's intention. In order that an act may be done with the intention of bringing about a harmful or offensive contact or an apprehension thereof to a particular person, either the other or a third person, the act must be done for the purpose of causing the contact or apprehension or with knowledge on the part of the actor that such contact or apprehension is substantially certain to be produced.' See, also, Prosser on Torts 41, § 8.

        64

                We have here the conceded volitional act of Brian, i. e., the moving of a chair. Had the plaintiff proved to the satisfaction of the trial court that Brian moved the chair while she was in the act of sitting down, Brian's action would patently have been for the purpose or with the intent of causing the plaintiff's bodily contact with the ground, and she would be entitled to a judgment against him for the resulting damages. Vosburg v. Putney, 1891, 80 Wis. 523, 50 N.W. 403, 14 L.R.A. 226; Briese v. Maechtle, supra.

        66

                The plaintiff based her case on that theory, and the trial court held that she failed in her proof and accepted Brian's version of the facts rather than that given by the eyewitness who testified for the plaintiff. After the trial court determined that the plaintiff had not established her theory of a battery (i. e., that Brian had pulled the chair out from under the plaintiff while she was in the act of sitting down), it then became concerned with whether a battery was established under the facts as it found them to be.

        68

                In this connection, we quote another portion of the comment on the 'Character of actor's intention,' relating to clause (a) of the rule from the Restatement heretofore set forth:

        70

        'It is not enough that the act itself is intentionally done and this, even [279 P.2d 1094] though the actor realizes or should realize

        72

        Page 202

        74

                A battery would be established if, in addition to plaintiff's fall, it was proved that, when Brian moved the chair, he knew with substantial certainty that the plaintiff would attempt to sit down where the chair had been. If Brian had any of the intents which the trial court found, in the italicized portions of the findings of fact quoted above, that he did not have, he would of course have had the knowledge to which we have referred. The mere absence of any intent to injure the plaintiff or to play a prank on her or to embarrass her, or to commit an assault and battery on her would not absolve him from liability if in fact he had such knowledge. Mercer v. Corbin, 1889, 117 Ind. 450, 20 N.E. 132, 3 L.R.A. 221. Without such knowledge, there would be nothing wrongful about Brian's act in moving the chair and, there being no wrongful act, there would be no liability.

        76

                While a finding that Brian had no such knowledge can be inferred from the findings made, we believe that before the plaintiff's action in such a case should be dismissed there should be no question but that the trial court had passed upon that issue; hence, the case should be remanded for clarification of the findings to specifically cover the question of Brian's knowledge, because intent could be inferred therefrom. If the court finds that he had such knowledge the necessary intent will be established and the plaintiff will be entitled to recover, even though there was no purpose to injure or embarrass the plaintiff. Vosburg v. Putney, supra. If Brian did not have such knowledge, there was no wrongful act by him and the basic premise of liability on the theory of a battery was not established.

        78

                It will be noted that the law of battery as we have

        80

        Page 203

        82

                From what has been said, it is clear that we find no merit in plaintiff's contention that we can direct the entry of a judgment for $11,000 in her favor on the record now before us.

        84

                Nor do we find any error in the record that warrants a new trial.

        86

                What we have said concerning intent in relation to batteries caused by the physical contact of a plaintiff with the ground or floor as the result of the removal of a chair by a defendant furnishes the basis for the answer to the contention of the plaintiff that the trial court changed its theory of the applicable law after the trial, and that she was prejudiced thereby.

        88

                It is clear to us that there was no change in theory so far as the plaintiff's case was concerned. The trial court consistently from beginning to end recognized that if the plaintiff proved what she alleged and her eyewitness testified, namely, that Brian pulled the chair out from under the plaintiff while she was in the act of sitting down and she fell to the ground in consequence thereof, a battery was established. Had she proved that state of facts, then the trial court's comments about inability to find any intent (from the connotation of motivation) to injure or embarrass the plaintiff, and the italicized portions of his findings as above set forth could have indicated a change of theory. But what must be recognized is that the trial court was trying in those comments and in the italicized findings to express the law applicable, not to the facts as the plaintiff contended they were, but to the facts as the trial court found them to be. The remand for clarification gives the plaintiff an opportunity to secure a judgment even though the trial court did not accept her version of the facts, if from all [279 P.2d 1095] the evidence, the trial court can find that Brian knew with substantial

        90

        Page 204

        92

                The plaintiff-appellant urges as another ground for a new trial that she was refused the right to cross-examine Brian. Some twenty pages of cross-examination indicate that there was no refusal of the right of cross-examination. The only occasion that impressed us as being a restriction on the right of cross-examination occurred when plaintiff was attempting to develop the fact that Brian had had chairs pulled out from under him at kindergarten and had complained about it. Plaintiff's counsel sought to do this by asking questions concerning statements made at Brian's home and in a court reporter's office. When objections were sustained, counsel for plaintiff stated that he was asking about the conversations to refresh the recollection of the child, and made an offer of proof. The fact that plaintiff was seeking to develop came into the record by the very simple method of asking Brian what had happened at kindergarten. Consequently what plaintiff offered to prove by the cross-examination is in the record, and the restriction imposed by the trial court was not prejudicial.

        94

                It is argued that some courts predicate an infant's liability for tort upon the basis of the existence of an estate in the infant; hence it was error for the trial court to refuse to admit as an exhibit a policy of liability insurance as evidence that there was a source from which a judgment might be satisfied. In our opinion the liability of an infant for his tort does not depend upon the size of his estate or even upon the existence of one. That is a matter of concern only to the plaintiff who seeks to enforce a judgment against the infant.

        96

                The motion for a new trial was also based on newly discovered evidence. The case having been tried to the court, the trial judge was certainly in a position to know whether that evidence would change the result on a new trial. It was not of a character that would make the denial of the motion an abuse of discretion.

        98

        Page 205

        100

                The plaintiff complains, and with some justice, that she was not permitted to take a pretrial deposition of the defendant Brian Dailey. While Rule of Pleading, Practice, and Procedure 30(b), 34A Wash.2d 91, gives the trial court the right 'for good cause shown' to prevent the taking of a deposition, it seems to us that though it might well have been taken under the supervision of the court to protect the child from leading, misleading and confusing questions, the deposition should have been allowed, if the child was to be permitted to testify at the trial. If, however, the refusal to allow the taking of the deposition was an abuse of discretion, and that we are not prepared to hold, it has not been established that the refusal constituted prejudicial error. (Parenthetically we would add that the right to a review of the rulings on pretrial procedure or with respect to depositions or discovery or incidental procedural motions preceding the trial seems to be limited to an appeal from a final judgment, 2 Barron and Holtzoff, Federal Practice and Procedure (Rules Ed.) § 803; 3 Id. § 1552, and realistically such a review is illusory for the reasons given by Prof. David W. Louisell. See 36 Minn.L.Rev. 654.)

        102

                The cause is remanded for clarification, with instructions to make definite findings on the issue of whether Brian Dailey knew with substantial certainty that the plaintiff would attempt to sit down where the chair which he moved had been, and to change the judgment if the findings warrant it.

        104

                Costs on this appeal will abide the ultimate decision of the superior court. If a judgment is entered for the plaintiff, Ruth Garratt, appellant here, she shall be entitled to her costs on this appeal. If, however, the judgment of dismissal remains unchanged, the respondent will be entitled to recover his costs on this appeal.

        106

                Remanded for clarification.

        108

                SCHWELLENBACH, DONWORTH, and WEAVER, JJ., concur.

    • 1.3 I.C. The Restatement Approach to Assault and Battery

      • 1.3.1 Restatement Approach to Assault

        2
        Restatement (Second) of Torts

        5
        § 21. Assault


        8

             (1) An actor is subject to liability to another for assault if

                  (a) he 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.

             (2) An action which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for an apprehension caused thereby although the act involves an unreasonable risk of causing it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

      • 1.3.2 Restatement Approach to Battery

        2
        Restatement (Third) of Torts

        5
        Liability For Intentional Physical Harm

        7

             An actor who intentionally causes physical harm is subject to liability for that harm.



        11
        Restatement (Second) of Torts

        13

             (1) An actor is subject to liability to another for battery if

                  (a) he 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) an offensive contact with the person of the other directly or indirectly results.

             (2) An act which is not done with the intention stated in Subsection (1, a) does not make the actor liable to the other for a mere offensive contact with the other's person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

  • 2 IV. Defenses: Overriding the Choices of Others

    Nearly any defined pattern of wrongdoing is likely to admit exceptions. That’s in part what can make it so difficult to simply stipulate by legal text ahead of time what behavior is allowed and what is not. But we can try. Efforts to taxonomize carve-outs from legal rules or standards can be worked into the prima facie – “at first glance” – case for a wrong. For example, we might start by defining a battery as an “…unconsented touching… .” Exceptions can also be enshrined as affirmative defenses: all the requirements of a prima facie case might be met, but a defense may then be invoked against it. In this configuration, a battery could be a mere “touching,” but a case for damages would be derailed if the defendant can show consent by the plaintiff. Is there any meaningful difference between defining a tort in a way that captures exceptions in the definition itself, compared to a simpler definition accompanied by a set of defenses?

    Here we look at some of the most common defenses to a range of intentional torts, and their limits. When, for example, should consent of the victim not be enough to eliminate liability for a wrongdoer? What happens when someone hurts someone else in an act of self-defense, but has made a mistake about the intentions of the person acted against? At what point should one’s personal or property rights yield to an emergency in which someone else’s life or property is at stake? This last question also offers us an opportunity to think in a more nuanced way about “plaintiffs” and “defendants” – in many situations the parties are interacting with one another, and each is prepared to claim wrong by the other. A court, then, might find each party as both plaintiff and defendant against the other, and one could imagine a range of actions that ought to be demanded or incented in order to reach a just outcome. Part of the nuance here is to recognize that the law can indeed alternatively “demand” and “incent”: the first, even in civil tort, could be backed up by a threat of jail time or crippling fines; the second, imposed as a carefully calibrated “cost of doing business.” By charging the “right” amount of damages for a harm, is it sensible to then speak of achieving the proper – “efficient,” even – level or amount of such harm in society?

    • 2.1 IV.A. Consent

      • 2.1.1 Hart v. Geysel--"The Fatal Prize Fight"

        Should a tort be recognized when both parties agreed to engage in harmful contact?

        1

        294 P. 570Supreme Court of Washington.

        HART

        v.

        GEYSEL et al.

        No. 22490.Dec. 29, 1930.
        2

        En Banc.

        3

        Appeal from Superior Court, King County; Chester A. Batchelor, Judge.

        4

        Action by Dean E. Hart, as administrator of the estate of Hamilton I. Cartwright, deceased, against Cecil Geysel and others. From a judgment dismissing the action, plaintiff appeals.

        5

        Affirmed.

        6

        HOLCOMB and FULLERTON, JJ., dissenting.

        7

        Bell, McNeil & Bowles, J. Speed Smith and Henry Elliott, Jr., all of Seattle, for appellant.

        8

        Caldwell & Lycette, Eggerman & Rosling, A. C. Van Soelen, Bruce MacDougall, and Todd, Holman & Sprague, all of Seattle, for respondents.

        10

        Opinion

        11

        MAIN, J.

        12

        This action was brought by the administrator of the estate of Hamilton I. Cartwright, deceased, who died as the result of a blow received in a prize fight. To the amended complaint, which will be referred to as the complaint, each of the defendants interposed a demurrer, which was sustained. The plaintiff refused to plead further and elected to stand upon the complaint. A judgment was entered dismissing the action, from which the plaintiff appeals.

        13

        February 5, 1929, Hamilton I. Cartwright and Cecil Geysel engaged in a prize fight in the city of Seattle, during which Cartwright received a blow which caused his death. In the complaint there are no facts showing that the mutual combat was engaged in in anger, that there was malicious intent to seriously injure, or that there was excessive force.

        14

        The controlling question is whether the action can be maintained for wrongful death when the encounter, though unlawful, was entered into with the consent of both parties.

        15

        Section 2556, Rem. Comp. Stat., makes prize fighting unlawful and provides that one engaging therein shall be guilty of a gross misdemeanor, with a proviso which is not here material.

        16

        The administrator has no greater rights pertaining to a recovery of damages than would the deceased have had, had he lived and brought an action for any injuries that he may have received. Ostheller v. Spokane & Indland Empire R. Co., 107 Wash. 678, 182 P. 630.

        17

        Upon the question stated, the adjudicated cases, as well as the text-writers, are in conflict. One line supports what is known as the majority rule, and the other, the minority. The majority rule has been stated as follows:

        18

        ‘Where the parties engage in mutual combat in anger, each is civilly liable to the other for any physical injury inflicted by him during the fight. The fact that the parties voluntarily engaged in the combat is no defense to an action by either of them to recover damages for personal injuries inflicted upon him by the other.’

        19

        This rule is supported by the cases of Willey v. Carpenter, 64 Vt. 212, 23 A. 630, 15 L. R. A. 853; Adams v. Waggoner, 33 Ind. 531, 5 Am. Rep. 230; Barholt v. Wright, 45 Ohio St. 177, 12 N. E. 185, 4 Am. St. Rep. 535; McNeil v. Mullin, 70 Kan. 634, 79 P. 168; Morris v. Miller, 83 Neb. 218, 119 N. W. 458, 20 L. R. A. (N. S.) 907, 131 Am. St. Rep. 636, 17 Ann. Cas. 1047; Colby McClendon, 85 Okl. 293, 206 P. 207, 30 A. L. R. 196; Royer v. Belcher, 100 W. Va. 694, 131 S. E. 556, 47 A. L. R. 1089; Littledike v. Wood, 69 Utah, 323, 255 P. 172.

        20

        The minority rule has been stated as follows:

        21

        ‘Where parties engage in a mutual combat in anger, the act of each is unlawful and relief will be denied them in a civil action; at least, in the absence of a showing of excessive force or malicious intent to do serious injury upon the part of the defendant.’

        22

        The cases of White v. Whittal, 113 Mich. 493, 71 N. W. 1118; Smith v. Simon, 69 Mich. 481, 37 N. W. 548; McNeil v. Choate, 197 Ky. 682, 247 S. W. 955; Lykins v. Hamrick, 144 Ky. 80, 137 S. W. 852; Wright v. Starr, 42 Nev. 41, 179 P. 877, 6 A. L. R. 981, support this rule.

        23

        With reference to the two rules, after reviewing the authorities, the Supreme Court of Oklahoma, in the comparatively recent case of Colby v. McClendon, 85 Okl. 293, 206 P. 207, 209, 30 A. L. R. 196, said:

        24

        ‘This court has never passed upon the question, but it seems that the majority rule is supported by the best reasoning. We think it should be followed in a case where the parties enter into a mutual combat with deadly weapons. The minority rule is announced in cases where the injury resulted from fist fights, although the case of Lykins v. Hamrick, supra, was where parties were engaged in a cutting scrape. We think it would be against public policy to apply the minority rule in a case where persons enter into a mutual combat with deadly weapons.’

        25

        In each of the cases which support the majority rule, the combat was entered into in anger, with a malicious intent to seriously injure, and in some of them the question of excessive force was present as bearing upon the question of damages. In the cases which support the minority rule, the encounter, or fist fight, as it may be called, was entered into in anger, from which it would be necessarily inferred that there was an intent to do injury.

        26

        The majority rule carries into a civil action, where one party sues the other for damages for something which has been done in violation of positive law, the principle applied in criminal prosecutions by the state to the effect that the consent of one or both of the parties does not prevent such a prosecution. The minority rule does not apply this principle when a civil action is brought by one of the parties against the other for damages which have been sustained in a combat consented to by both parties, but which was in violation of positive law. The authorities supporting the majority rule recognize that if the thing done is not one prohibited by positive law, for which a penalty is imposed then consent is a complete defense in a civil action for damages. The majority rule is an exception to two generally well-recognized and accepted principles of law: (a) That one who has consented to suffer a particular invasion of his private right has no right to complain; and (b) that no one shall profit by his own wrongdoing. The minority rule recognizes and applies these principles.

        27

        The facts in the case now before us do not bring it within the authorities supporting the majority rule, because here there are no facts which show anger, malicious intent to injure, or excessive force. It may be stated that the facts of this case do not contain one element of the minority rule, that of anger. It is unnecessary, as we view it, in the present case to adopt either rule. It is sufficient to say that in our opinion one who engages in prize fighting, even though prohibited by positive law, and sustains an injury, should not have a right to recover any damages that he may sustain as the result of the combat, which he expressly consented to and engaged in as a matter of business or sport. To enforce the criminal statute against prize fighting, it is not necessary to reward the one that got the worst of the encounter at the expense of his more fortunate opponent. This view is supported by the rule tentatively adopted by the American Law Institute in the Restatement of the Law of Torts, and is discussed in American Institute Treatise No. 1(a) Supporting Restatement No. 1, Torts, chapter V, section 75, beginning at page 172, 1925. In part, it is there said:

        28

        ‘Notwithstanding the numerical weight of authority against the view that an assent to a breach of the peace is a legally effective consent to such invasions of interest of personality as are involved therein the minority view is preferred for the following reasons:

        29

        ‘1. The majority view is obviously an exception to the general principle that one who has sufficiently expressed his willingness to suffer a particular invasion has no right to complaint if another acts upon his consent so given. The very nature of rights of personality, which are in freedom to dispose of one's interests of personality as one pleases, fundamentally requires this to be so. There is a further principle, applicable not only in tort law but throughout the whole field of law, and perhaps more conspicuously in other subjects, to the effect that no man shall profit by his own wrongdoing.

        30

        ‘The majority view is an exception to both of these two fundamental principles. Clearly if a plaintiff has consented to being struck by another in the course of a brawl, his right to the control of his person and to determine by whom and how it shall be touched has not been invaded. And it is equally clear that if he has so expressed his consent to the blow that, were he not party to a breach of the peace, his assent would be an operative consent and so bar his liability, he is profiting by the illegality of his conduct if because he is party to the breach of the peace he gains a right of action which but for his criminal joinder therein he would not have had.

        31

        ‘The majority view, being, as it is, an exception to two such otherwise universal principles of law, can be sustained only if it is founded upon authorities which were not only based upon sound reason when announced but which are based upon reasons which still remain sound and convincing, or if the exception is one which is required to carry into effect some weighty public policy.’

        32

        In the opinion in the case of Milam v. Milam, 46 Wash. 468, 90 P. 595, neither of the above rules was mentioned or discussed, and we do not regard that case as controlling. There is some language in it which leads to the belief that it was decided on the theory of excessive force.

        33

        The appellant cites a number of cases which hold that consent to an abortion by a patient is no defense to a subsequent action for damages against the doctor for performing the operation in a negligent manner, but if that by the rule in such cases it is not necessarily applicable to the facts now before us. We here distinctly do not express any opinion upon whether consent to an abortion precludes a right of recovery for the negligent act of the doctor in performing the operation.The judgment will be affirmed.

        34

        MITCHELL, C. J., and PARKER, TOLMAN, BEALS, MILLARD and BEELER, JJ., concur.

        35

        HOLCOMB, J. (dissenting).

        36

        I am unable to concur in the prevailing opinion because it is contrary to the better reasoning as stated in what is called the majority rule, is contrary to public policy, and sets a bad precedent.

        37

        The first error contained in the prevailing opinion is that there are no facts in the complaint showing that the mutual combat was engaged in in anger, that there was malicious intent to seriously injure, or that there was excessive force.

        38

        If excessive force be necessary as an element of recovery in a case where a mutual combat was voluntarily engaged in, the complaint alleges it in the following language:

        39

        ‘* * * The said Cecil Geysel, having engaged and while engaged in the said unlawful encounter with the said Hamilton I. Cartwright, continued fighting with the said Hamilton I. Cartwright and did unlawfully and unjustifiably assault, strike, beat and injure the said Hamilton I. Cartwright, and did strike the said Hamilton I. Cartwright so cruelly and with such force and violence as to knock him down and cause him to fall upon the floor, from which said assault, striking, beating and blows, and from the injuries received from the falling the said Hamilton I. Cartwright died.’

        40

        The foregoing certainly was an allegation of excessive force and brings and case squarely under our own decision in Milam v. Milam, 46 Wash. 468, 90 P. 595, which is distinguished in the majority opinion upon the ground that it was decided on the theory of excessive force.

        41

        The principal contention in the Milam Case, as shown by the briefs filed therein, was that the affray in that case was mutual and voluntary, and therefore the act committed was not done against the will of the party assaulted.

        42

        Unless this court intended to deny that proposition, there could be no recovery even when excessive force appears, just as in the present case.

        43

        For once, I am unable to agree with either the reasoning or conclusions arrived at tentatively by the American Law Institute in its Restatement of the Law, reference to which is made in the majority opinion, as being the better reasoning and the better principle to follow in deciding this case. I admit that ancient precedents should not govern where they are bad. One ancient case criticized in the Restatement, supra, was that of Matthew v. Ollerton, Comerbach 218, 90 Eng. Reprint 438, which is said to be a mere dictum stating: ‘If a man license another to beat him, such license is void as it is against the peace.’ This dictum, it is said, was followed in a more modern case, Boulter v. Clark, Buller's Nisi Prius, 16, where the presiding judge ruled that the fighting being unlawful the consent to fight, if proved, would not bar the plaintiff.

        44

        Although that may be but dictum and of faulty, human origin, there is ancient and Divine authority in the Mosaic law:

        45

        ‘And if men strive together, and one smite another, with a stone, or with his fist and he die not but keepeth his bed; if he rise again, and walk about upon his staff, then he that smote him be quit; only he shall pay for the loss of his time and shall cause him to be thoroughly healed.’ Exoduls XXI:18, 19.

        46

        See, also, Adams v. Waggoner, 33 Ind. 531, 5 Am. Rep. 230; McNeil v. Mullin, 70 Kan. 634, 79 P. 168; Willey v. Carpenter, 64 Vt. 212, 23 A. 630, 15 L. R. A. 853; Littledike v. Wood, 69 Utah. 323, 255 P. 172.

        47

        Our statute, Rem. Comp. Stat., § 2556, makes prize fighting unlawful. Hence, there could be no lawful consent to such a combat. Physical combats are against the peace anyway. Had it been a duel, it would have been unlawful and consent to fight a duel would not prevent recovery by either those injured, on the ground of excessive force, or the heirs or personal representatives of those injured.

        48

        The reasoning of Judge Cooley is, to my mind, greatly superior to the reasoning employed in the Restatement of the Law on Torts. Judge Cooley reasons as follows, Cooley on Torts (3d Ed.) 282:

        49

        ‘It is implied, in an assault or battery, that it is committed against the assent of the person assaulted; but there are some things a man can never assent to, and therefore his license in such cases can constitute no excuse. He can never consent, for instance, to the taking of his own life. His life is not his to take or give away; it would be criminal in him to take it, and equally criminal in any one else who should deprive him of it by his consent. The person who, in a duel, kills another, is not suffered to plead the previous arrangements and the voluntary exposure to death by agreement, as any excuse whatever. The life of an individual is guarded in the interest of the State, and not in the interest of the individual alone; and not his life only is protected, but his person as well. Consent cannot justify an assault.

        50

        ‘But suppose in the duel one is not killed, but only wounded; may he have an action against his adversary for this injury? If there is any reason why he may not, it must be because he has consented to what has been done. Volenti non fit injuria. But if he had no right or power to consent, and the consent expressed in words was wholly illegal and void, the question then is, how a, consent which the law forbids can be accepted in law as a legal protection?

        51

        ‘Consent is generally a full and perfect shield when that is complained of as a civil injury which was consented to. * * *

        52

        ‘But in case of a breach of the peace it is different. The State is wronged by this, and forbids it on public grounds. If men fight, the State will punish them. If one is injured, the law will not listen to an excuse based on a breach of the law. There are three parties here, one being the State, which, for its own good, does not suffer the others to deal on a basis of contract with the public peace. The rule of law is therefore clear and unquestionable, that consent to an assault is no justification. Where a combat involves a breach of the peace, the mutual consent of the parties thereto is to be regarded as unlawful, and as not depriving the injured party, or, for that matter, each injured party, from recovering damages for injuries received from the unlawful acts of the other.’

        53

        See, also, 1 Jaggard on Torts, 203, to the same effect.

        54

        I am convinced the complaint stated a cause of action under the correct principles of law and the judgment should be reversed.

        55

        FULLERTON, J.
        I concur in the conclusion of Judge HOLCOMB.

      • 2.1.2 Hackbart v. Cincinnati Bengals--"The No-Foul-But-Severe-Harm Case"

        Does the nature of a rough-and-tumble activity like professional football excuse potential tort liability arising from the game?

        1
        601 F.2d 516 (1979)
        2
        Dale Hackbart, Plaintiff-Appellant,
        v.
        Cincinnati Bengals, Inc., and Charles "Booby" Clark, Defendants-Appellees.
        3
        No. 77-1812.
        4

        United States Court of Appeals, Tenth Circuit.

        5
        Argued March 13, 1979.
        6
        Decided June 11, 1979.
        7

        517*517 518*518 Mary Butler, of Johnson & Mahoney, P. C., Denver, Colo. (Roger F. Johnson, Denver, Colo., on brief), for plaintiff-appellant.

        8

        Robert G. Stachler, of Taft, Stettinius & Hollister, Cincinnati, Ohio (William C. McClearn, of Holland & Hart, Denver, Colo., and Thomas T. Terp, of Taft, Stettinius & Hollister, Cincinnati, Ohio, on brief), for defendants-appellees.

        9

        Before DOYLE, McKAY and LOGAN, Circuit Judges.

        10

        WILLIAM E. DOYLE, Circuit Judge.

        11

        The question in this case is whether in a regular season professional football game an injury which is inflicted by one professional football player on an opposing player can give rise to liability in tort where the injury was inflicted by the intentional stricking of a blow during the game.

        12

        The injury occurred in the course of a game between the Denver Broncos and the Cincinnati Bengals, which game was being played in Denver in 1973. The Broncos' defensive back, Dale Hackbart, was the recipient of the injury and the Bengals' offensive back, Charles "Booby" Clark, inflicted the blow which produced it.

        13

        By agreement the liability question was determined by the United States District Court for the District of Colorado without a jury. The judge resolved the liability issue in favor of the Cincinnati team and Charles Clark. Consistent with this result, final judgment was entered for Cincinnati and the appeal challenges this judgment. In essence the trial court's reasons for rejecting plaintiff's claim were that professional football is a species of warfare and that so much physical force is tolerated and the magnitude of the force exerted is so great that it renders injuries not actionable in 519*519 court; that even intentional batteries are beyond the scope of the judicial process.

        14

        Clark was an offensive back and just before the injury he had run a pass pattern to the right side of the Denver Broncos' end zone. The injury flowed indirectly from this play. The pass was intercepted by Billy Thompson, a Denver free safety, who returned it to mid-field. The subject injury occurred as an aftermath of the pass play.

        15

        As a consequence of the interception, the roles of Hackbart and Clark suddenly changed. Hackbart, who had been defending, instantaneously became an offensive player. Clark, on the other hand, became a defensive player. Acting as an offensive player, Hackbart attempted to block Clark by throwing his body in front of him. He thereafter remained on the ground. He turned, and with one knee on the ground, watched the play following the interception.

        16

        The trial court's finding was that Charles Clark, "acting out of anger and frustration, but without a specific intent to injure * * * stepped forward and struck a blow with his right forearm to the back of the kneeling plaintiff's head and neck with sufficient force to cause both players to fall forward to the ground." Both players, without complaining to the officials or to one another, returned to their respective sidelines since the ball had changed hands and the offensive and defensive teams of each had been substituted. Clark testified at trial that his frustration was brought about by the fact that his team was losing the game.

        17

        Due to the failure of the officials to view the incident, a foul was not called. However, the game film showed very clearly what had occurred. Plaintiff did not at the time report the happening to his coaches or to anyone else during the game. However, because of the pain which he experienced he was unable to play golf the next day. He did not seek medical attention, but the continued pain caused him to report this fact and the incident to the Bronco trainer who gave him treatment. Apparently he played on the specialty teams for two successive Sundays, but after that the Broncos released him on waivers. (He was in his thirteenth year as a player.) He sought medical help and it was then that it was discovered by the physician that he had a serious neck fracture injury.

        18

        Despite the fact that the defendant Charles Clark admitted that the blow which had been struck was not accidental, that it was intentionally administered, the trial court ruled as a matter of law that the game of professional football is basically a business which is violent in nature, and that the available sanctions are imposition of penalties and expulsion from the game. Notice was taken of the fact that many fouls are overlooked; that the game is played in an emotional and noisy environment; and that incidents such as that here complained of are not unusual.

        19

        The trial court spoke as well of the unreasonableness of applying the laws and rules which are a part of injury law to the game of professional football, noting the unreasonableness of holding that one player has a duty of care for the safety of others. He also talked about the concept of assumption of risk and contributory fault as applying and concluded that Hackbart had to recognize that he accepted the risk that he would be injured by such an act.

        21
        I.

        23
        THE ISSUES AND CONTENTIONS
        24

        1. Whether the trial court erred in ruling that as a matter of policy the principles of law governing the infliction of injuries should be entirely refused where the injury took place in the course of the game.

        25

        2. Did the trial court err in concluding that the employee was not vicariously liable for an activity for which he had not received express authorization?

        26

        3. Whether it was error to receive in evidence numerous episodes of violence which were unrelated to the case at bar, that is, incidents of intentional infliction of injury which occurred in other games.

        27

        4. Whether it was error for the trial court to receive in evidence unrelated acts on the part of the plaintiff.

        28

        520*520 5. The final issue is whether the evidence justifies consideration by the court of the issue of reckless conduct as it is defined in A.L.I. Restatement of the Law of Torts Second, § 500, because (admittedly) the assault and battery theory is not available because that tort is governed by a one-year statute of limitations.

        30
        II.

        32
        WHETHER THE EVIDENCE SUPPORTED THE JUDGMENT
        33

        The evidence at the trial uniformly supported the proposition that the intentional striking of a player in the head from the rear is not an accepted part of either the playing rules or the general customs of the game of professional football. The trial court, however, believed that the unusual nature of the case called for the consideration of underlying policy which it defined as common law principles which have evolved as a result of the case to case process and which necessarily affect behavior in various contexts. From these considerations the belief was expressed that even intentional injuries incurred in football games should be outside the framework of the law. The court recognized that the potential threat of legal liability has a significant deterrent effect, and further said that private civil actions constitute an important mechanism for societal control of human conduct. Due to the increase in severity of human conflicts, a need existed to expand the body of governing law more rapidly and with more certainty, but that this had to be accomplished by legislation and administrative regulation. The judge compared football to coal mining and railroading insofar as all are inherently hazardous. Judge Matsch said that in the case of football it was questionable whether social values would be improved by limiting the violence.

        34

        Thus the district court's assumption was that Clark had inflicted an intentional blow which would ordinarily generate civil liability and which might bring about a criminal sanction as well, but that since it had occurred in the course of a football game, it should not be subject to the restraints of the law; that if it were it would place unreasonable impediments and restraints on the activity. The judge also pointed out that courts are ill-suited to decide the different social questions and to administer conflicts on what is much like a battlefield where the restraints of civilization have been left on the sidelines.

        35

        We are forced to conclude that the result reached is not supported by evidence.

        37
        III.

        39
        WHETHER INTENTIONAL INJURY IS ALLOWED BY EITHER WRITTEN RULE OR CUSTOM
        40

        Plaintiff, of course, maintains that tort law applicable to the injury in this case applies on the football field as well as in other places. On the other hand, plaintiff does not rely on the theory of negligence being applicable. This is in recognition of the fact that subjecting another to unreasonable risk of harm, the essence of negligence, is inherent in the game of football, for admittedly it is violent. Plaintiff maintains that in the area of contributory fault, a vacuum exists in relationship to intentional infliction of injury. Since negligence does not apply, contributory negligence is inapplicable. Intentional or reckless contributory fault could theoretically at least apply to infliction of injuries in reckless disregard of the rights of others. This has some similarity to contributory negligence and undoubtedly it would apply if the evidence would justify it. But it is highly questionable whether a professional football player consents or submits to injuries caused by conduct not within the rules, and there is no evidence which we have seen which shows this. However, the trial court did not consider this question and we are not deciding it.

        41

        Contrary to the position of the court then, there are no principles of law which allow a court to rule out certain tortious conduct by reason of general roughness of the game or difficulty of administering it.

        42

        521*521 Indeed, the evidence shows that there are rules of the game which prohibit the intentional striking of blows. Thus, Article 1, Item 1, Subsection C, provides that:

        43
        All players are prohibited from striking on the head, face or neck with the heel, back or side of the hand, wrist, forearm, elbow or clasped hands.
        44

        Thus the very conduct which was present here is expressly prohibited by the rule which is quoted above.

        45

        The general customs of football do not approve the intentional punching or striking of others. That this is prohibited was supported by the testimony of all of the witnesses. They testified that the intentional striking of a player in the face or from the rear is prohibited by the playing rules as well as the general customs of the game. Punching or hitting with the arms is prohibited. Undoubtedly these restraints are intended to establish reasonable boundaries so that one football player cannot intentionally inflict a serious injury on another. Therefore, the notion is not correct that all reason has been abandoned, whereby the only possible remedy for the person who has been the victim of an unlawful blow is retaliation.

        47
        IV.

        49
        WAS IT LEGALLY JUSTIFIABLE FOR THE TRIAL COURT TO HOLD, AS A MATTER OF POLICY, THAT JURISDICTION SHOULD NOT BE ASSUMED OVER THE CASE IN VIEW OF THE FACT THAT IT AROSE OUT OF A PROFESSIONAL FOOTBALL GAME?

        51
        A. Whether the theory of judicial restraint applies.
        52

        It is a well-settled principle of federal jurisdiction that where a federal court does not have a discretion to accept or reject jurisdiction, if it does not have jurisdiction, it will not take it; but it is ruled, on the other hand, that if it has jurisdiction it must take it. This principle has been expressed many times with perhaps one of the best expressions being found in an early opinion, that of Mr. Chief Justice Marshall in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264, 404, 5 L.Ed. 257 (1821):

        53
        It is most true, that this court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction, if it should. The judiciary cannot, as the legislature may, avoid a measure, because it approaches the confines of the constitution. We cannot pass it by, because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given, than to usurp that which is not given. The one or the other would be treason to the constitution. Questions may occur, which we would gladly avoid; but we cannot avoid them. All we can do is, to exercise our best judgment, and conscientiously to perform our duty. In doing this, on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the constitution and laws of the United States. We find no exception to this grant, and we cannot insert one.
        54

        Much more recently the Supreme Court in the case of Willcox v. Consolidated Gas Co., 212 U.S. 19, 40, 29 S.Ct. 192, 195, 53 L.Ed. 382 (1909), speaking through Mr. Justice Peckham, stated that where a federal court is appealed to in the case over which it has by law jurisdiction, it is its duty to take such jurisdiction.

        55
        They assume to criticise that court [United States District Court for the Southern District of New York] for taking jurisdiction of this case, as precipitate, as if it were a question of discretion or comity, whether or not that court should have heard the case. On the contrary, there was no discretion or comity about it. When a Federal court is properly appealed to in a case over which it has by law jurisdiction, it is its duty to take such jurisdiction (Cohens v. Virginia, [19 U.S. 264,] 6 Wheat., 264, 404, 5 L.Ed. 257), and, in taking it, that court cannot be truthfully spoken of as precipitate in its conduct. 522*522 That the case may be one of local interest only is entirely immaterial, so long as the parties are citizens of different States or a question is involved which by law brings the case within the jurisdiction of a Federal court. The right of a party plaintiff to choose a Federal court where there is a choice cannot be properly denied.
        56

        Mr. Justice Peckham expressed the view that the rule is based on the right of a party plaintiff to choose a federal court where there is a choice.

        57

        There are some recognized limitations on federal courts assuming jurisdiction, but none of these permit a court to exercise its own discretion on the subject. One example of limitation is the political question. Another is the doctrine of abstention, which is exercised where a state court is involved and deference is exercised in favor of the state court. See, for example, Colorado River Water Conservation District v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976). These, however, are the exceptions and not the rule as was pointed out in the cited case. Abstention itself is limited. It does not contemplate that federal courts abdicate their jurisdiction. See American Trial Lawyers Association v. New Jersey Supreme Court, 409 U.S. 467, 93 S.Ct. 627, 34 L.Ed.2d 651 (1973).

        58

        The Supreme Court has been known to refuse to exercise its original jurisdiction. Ohio v. Wyandotte Chemicals Corporation, 401 U.S. 493, 91 S.Ct. 1005, 28 L.Ed.2d 256 (1971). At the same time, it reiterated the traditional rule that where a federal court has jurisdiction it must exercise it. It is not at liberty to refuse to do so unless it is in accordance with one of the principles mentioned above. Original jurisdiction in the Supreme Court allows much more leeway to refusing acceptance of jurisdiction than does an inferior federal court.

        59

        It is clear that none of the grounds for refusing access to the courts are present in the instant case. One writer, Professor Keeton, has said that courts properly participate in the evolution and development of common law. We submit that this approach is at odds with refusing to accept the case. See Keeton, Creative Continuity of Tort Law, 75 Harv.L.Rev. 463 (1962). See also Widener, Some Random Thoughts on Judicial Restraint, 31 Wn. and Lee L.Rev. 505 (1974).[1]

        60

        The spirit and the letter of the decisions are that if jurisdiction to hear or determine cases exists, as it does in the case at bar, the cause is to be tried on its merits.

        61

        The position which was adopted by the trial court in this case was then directly contrary to all of the law dealing with the exercise of jurisdiction by federal courts.

        63
        B. Whether diversity jurisdiction provides any discretion.
        64

        It is of high importance to note the fact that in a diversity of citizenship case the federal district court sits as a state trial court and applies the law of the forum state. See Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). In this highly important decision the Supreme Court, through the late Justice Brandeis, overruled the early case of Swift v. Tyson, 41 U.S. (16 Pet.) 1, 10 L.Ed. 865 (1842), which had allowed federal trial courts to apply their own common law. The rule was established in Erie that the law of the state in which the court sat had to be applied to the diversity case. In rejecting the principle that the federal court could apply its own common law rule, the Court rejected the idea that a transcendental body of law existed for federal courts. It was said that there was no backup federal authority in the federal government to provide this power for federal courts; that the authoritative governing force was in the state courts.

        65

        523*523 Justice Holmes was quoted by Justice Brandeis (the author of Erie) for the proposition that the authority in this diversity area must come from the state. A second basis for disapproval of federal authority or ability to innovate in diversity cases also originated with Justice Holmes, who said that the Swift v. Tyson rule was an unconstitutional assumption of power by the courts of the United States. The Supreme Court in Erie thus declared that in applying the theory of Swift v. Tyson, the Supreme Court and lower federal courts had invaded rights protected by the Constitution of the United States and the several states.

        66

        So, applying the Erie doctrine, the conclusion is that there does not exist an independent basis which allows a federal court to, in effect, outlaw a particular activity absent legal evidence that either state policy or state law dictates or allows such action. Absent any such evidence, the trial court cannot turn to public policy in order to support a conclusion that the courts cannot entertain a particular case.

        67

        Second, it is also fundamental that for every injury wrongfully inflicted, some redress under the state common law must be afforded since it is essential that citizens be able to look to their government for redress. As was said in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 163, 2 L.Ed. 60 (1803), "The very essence of civil liberty certainly consists in the right of every individual to claim the protection of the law, whenever he received an injury. One of the first duties of government is to afford that protection."

        68

        The right of citizens to get relief in federal courts is similar to the same right in state court, bearing in mind that the federal courts in diversity cases are applying state law. We must also be cognizant that federal courts are limited to deciding cases or controversies. This was pointed out in Flast v. Cohen, 392 U.S. 83, 94-95, 88 S.Ct. 1942, 20 L.Ed.2d 947 (1968). The Court there said:

        69
        those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government.
        70

        392 U.S. at 95, 88 S.Ct. at 1950.

        71

        The Court in Flast was recognizing the right of a federal taxpayer to enjoin the spending of federal funds for the buying of books for use in religious schools. 392 U.S. at 105-06, 88 S.Ct. 1942.

        72

        The concurrence of Justice Douglas is worth noting, for he spoke on the right of access to the courts as follows:

        73
        The judiciary is an indispensable part of the operation of our federal system. With the growing complexities of government it is often the one and only place where effective relief can be obtained. If the judiciary were to become a super-legislative group sitting in judgment on the affairs of people, the situation would be intolerable. But where wrongs to individuals are done by violation of specific guarantees, it is abdication for the courts to close their doors.
        74

        392 U.S. at 111, 88 S.Ct. at 1958.

        76
        C. Does Colorado law provide or allow any restraint?
        77

        The next question is whether there are applicable restrictions in the Colorado law. On the contrary, the Colorado Constitution, Art. II, § 6, provides: "Court of justice shall be open to every person, and a speedy remedy afforded for every injury to person, property or character; and right and justice should be administered without sale, denial or delay." The district courts are said to be courts of unlimited jurisdiction unlike the federal courts. However, in a diversity case the federal court inherits the jurisdictional scope that is enjoyed by the state court within the district. Art. VI, § 9, subsection (1), provides:

        78
        The district courts shall be trial courts of record with general jurisdiction, and shall have original jurisdiction in all civil, 524*524 probate, and criminal cases, except as otherwise provided herein, and shall have such appellate jurisdiction as may be prescribed by law.
        79

        The Colorado courts have liberally construed these provisions. See Patterson v. People, 23 Colo. App. 479, 130 P. 618 (1913); People ex rel. Cruz v. Morley, 77 Colo. 25, 234 P. 178 (1924). In the Morley case it was said: "[t]he constitutional jurisdiction of the district court is unlimited. It should not be limited without circumspection and no statute should be held to limit it unless it says so plainly * * *." 234 P. at 179.

        80

        The Colorado Supreme Court has held that under Art. II, § 6 of the Colorado Constitution, where there exists a right under the law, the courts of the state will assure the protection of that right. O'Quinn v. Walt Disney Productions, Inc., 177 Colo. 190, 493 P.2d 344 (1972).

        81

        The common law, of course, obtains in Colorado. The legislature may modify it, but in the absence of evidence that the common law has been modified by legislation, the courts, that is, the district court and the federal district court in a diversity case, must apply it.

        82

        We are constrained to hold that the trial court's ruling that this case had to be dismissed because the injury was inflicted during a professional football game was error.

        84
        V.

        86
        IS THE STANDARD OF RECKLESS DISREGARD OF THE RIGHTS OF OTHERS APPLICABLE TO THE PRESENT SITUATION?
        87

        The Restatement of Torts Second, § 500, distinguishes between reckless and negligent misconduct. Reckless misconduct differs from negligence, according to the authors, in that negligence consists of mere inadvertence, lack of skillfulness or failure to take precautions; reckless misconduct, on the other hand, involves a choice or adoption of a course of action either with knowledge of the danger or with knowledge of facts which would disclose this danger to a reasonable man. Recklessness also differs in that it consists of intentionally doing an act with knowledge not only that it contains a risk of harm to others as does negligence, but that it actually involves a risk substantially greater in magnitude than is necessary in the case of negligence. The authors explain the difference, therefore, in the degree of risk by saying that the difference is so significant as to amount to a difference in kind.

        88

        Subsection (f) also distinguishes between reckless misconduct and intentional wrongdoing. To be reckless the act must have been intended by the actor. At the same time, the actor does not intend to cause the harm which results from it. It is enough that he realized, or from the facts should have realized, that there was a strong probability that harm would result even though he may hope or expect that this conduct will prove harmless. Nevertheless, existence of probability is different from substantial certainty which is an ingredient of intent to cause the harm which results from the act.

        89

        Therefore, recklessness exists where a person knows that the act is harmful but fails to realize that it will produce the extreme harm which it did produce. It is in this respect that recklessness and intentional conduct differ in degree.

        90

        In the case at bar the defendant Clark admittedly acted impulsively and in the heat of anger, and even though it could be said from the admitted facts that he intended the act, it could also be said that he did not intend to inflict serious injury which resulted from the blow which he struck.

        91

        In ruling that recklessness is the appropriate standard and that assault and battery is not the exclusive one, we are saying that these two liability concepts are not necessarily opposed one to the other. Rather, recklessness under § 500 of the Restatement might be regarded, for the purpose of analysis at least, a lesser included act.

        92

        525*525 Assault and battery, having originated in a common law writ, is narrower than recklessness in its scope. In essence, two definitions enter into it. The assault is an attempt coupled with the present ability to commit a violent harm against another. Battery is the unprivileged or unlawful touching of another. Assault and battery then call for an intent, as does recklessness. But in recklessness the intent is to do the act, but without an intent to cause the particular harm. It is enough if the actor knows that there is a strong probability that harm will result. Thus, the definition fits perfectly the fact situation here. Surely, then, no reason exists to compel appellant to employ the assault and battery standard which does not comfortably apply fully in preference to the standard which meets this fact situation.

        94
        VI.

        96
        WHICH OF THE STATUTES OF LIMITATIONS APPLIES?
        97

        The appellees contend that Clark was guilty of an assault and battery, if he was guilty of anything; that this is barred by the applicable statute of limitations for a one-year period. Appellant, however, contends that the injury was the result of reckless disregard of the rights of the plaintiff and that the six-year statute provided in Colo.Rev.Stat.Ann. § 13-80-110, is applicable.

        98

        Our court in the recent decision in Zuniga v. Amfac Foods, Inc., 580 F.2d 380 (10th Cir.1978), adopted the position that actions in tort are governed by the six-year provision in the cited statute. It is also to be noted that Colorado fully recognizes the action of reckless disregard for the rights of others. See Pettingell v. Moede, 129 Colo. 484, 271 P.2d 1038 (1954); Fanstiel v. Wright, 122 Colo. 451, 222 P.2d 1001 (1950); Shoemaker v. Mountain States Tel. & Tel. Co., 559 P.2d 721 (Colo.App. 1976). The definitions contained in § 500 are fully applicable here, and the Colorado Supreme Court in Fanstiel v. Wright, supra, has adopted the definition contained in § 500. A Comment to the section discusses the distinctions which we have previously mentioned.

        99

        We conclude that if the evidence establishes that the injuries were the result of acts of Clark which were in reckless disregard of Hackbart's safety, it can be said that he established a claim which is subject to the six-year statute. The cause has not been tried on its merits, but there is substantial evidence before us that supports the notion that Clark did act in accordance with the tests and standards which are set forth in § 500, supra. We are not prejudging this issue of fact, but are merely saying that considered in a light favorable to the plaintiff, at this stage of the proceedings the hypothesis exists that Clark's conduct would constitute a violation of § 500 and the appellant should be given an opportunity to offer his proofs in court on this subject.

        101
        VII.

        103
        DID THE COURT ERR IN RECEIVING IN EVIDENCE FILMS OF VIOLENCE THAT TOOK PLACE IN OTHER FOOTBALL GAMES REGARDLESS OF THE IDENTITY OF THE PLAYERS AND TEAMS?
        104

        There was a film of the actual injury suffered by plaintiff. It showed the sequence of events and also depicted the manner of infliction. Obviously we need not consider the relevancy of this.

        105

        There were incidents that were designed to show that the plaintiff Hackbart was a dirty player.

        106

        Finally, films were shown which depicted acts of violence between other players and other teams.

        107

        The Federal Rules of Evidence, Rule 401, define relevant evidence as follows:

        108
        "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
        109

        526*526 Rule 404 deals with character evidence and other crimes. That which deals with character states as follows:

        110
        (a) Character evidence generally. Evidence of a person's character or a trait of his character is not admissible for the purpose of proving that he acted in conformity therewith on a particular occasion, except:
        111
        (1) Character of accused. Evidence of a pertinent trait of his character offered by an accused, or by the prosecution to rebut the same;
        112
        (2) Character of victim. Evidence of a pertinent trait of character of the victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor;
        113
        (3) Character of witness. Evidence of the character of a witness, as provided in Rules 607, 608, and 609.
        114

        Subsection (b) of Rule 404 deals with other wrongs or acts and states the traditional rule that:

        115
        (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
        116

        Unless the game of football is on trial, and it appeared to be in the case at bar, the acts of violence which occurred in other games and between other teams and players were without relevance. The view we take is that the game of football is not on trial, but, rather, the trial involves a particular act in one game.

        117

        Although we recognize that the trial court has a broad discretion in receiving or rejecting evidence along this line, we fail to see the relevancy of other acts which are unconnected with the incident being tried.

        118

        The other aspect, namely the proof of the character of the plaintiff by production of prior acts, would be admissible only if his character was an issue in the case. Unless the plaintiff was shown to have been an unlawful aggressor in the immediate incident, his prior acts could not be relevant. The indications from the picture of the action here are that he threw a body block and after the lapse of some time, a short period of time, the blow was struck while Hackbart was down on his knee watching the action. Therefore, this evidence would appear to be questionable if not irrelevant.

        119

        On retrial the admissibility of prior unrelated acts should be very carefully considered and should not be received merely for the purpose of showing that the defendant himself had violated rules in times past since this is not per se relevant. Indeed it would be necessary for an issue to exist as to whether Hackbart was the aggressor in order for such evidence to be relevant.

        121
        * * * * * *
        122

        In sum, having concluded that the trial court did not limit the case to a trial of the evidence bearing on defendant's liability but rather determined that as a matter of social policy the game was so violent and unlawful that valid lines could not be drawn, we take the view that this was not a proper issue for determination and that plaintiff was entitled to have the case tried on an assessment of his rights and whether they had been violated.

        123

        The trial court has heard the evidence and has made findings. The findings of fact based on the evidence presented are not an issue on this appeal. Thus, it would not seem that the court would have to repeat the areas of evidence that have already been fully considered. The need is for a reconsideration of that evidence in the light of that which is taken up by this court in its opinion. We are not to be understood as limiting the trial court's consideration of supplemental evidence if it deems it necessary.

        124

        527*527 The cause is reversed and remanded for a new trial in accordance with the foregoing views.

        126

        [1] Judge Widener of the U.S. Court of Appeals for the Fourth Circuit concluded that if a problem exists it "is not to say that the federal courts must avoid all the hard, or unpleasant, or distasteful questions," but rather the limitations should be on the basis that jurisdiction prohibits the acceptance of the case. Since Congress prescribed jurisdiction, the boundaries set by it should be followed.

    • 2.2 IV.B. Preservation of Bodily Integrity

      • 2.2.1 Courvoisier v. Raymond--"The Mistaken Self-Defender"

        Should the common law excuse harmful contact made in self-defense? If so, how do we decide which harmful acts fall within the scope of self-defense?

        1
        47 P. 284Supreme Court of Colorado.
        COURVOISIERv.RAYMOND.
        Sept. 21, 1896.
        2

        Appeal from district court, Arapahoe county.

        3

        Action by Edwin S. Raymond against Auguste Courvoisier for personal damages. From a judgment in favor of plaintiff, defendant appeals. Reversed.

        4

        Edwin S. Raymond, appellee, as plaintiff below, complains of Auguste Courvoisier, appellant, and alleges that on the 12th day of June, A. D. 1892, plaintiff was a regularly appointed and duly qualified acting special policeman in and for the city of Denver; that, while engaged in the discharge of his duties as such special policeman, the defendant shot him in the abdomen, thereby causing a serious and painful wound; that in so doing the defendant acted willfully, knowingly, and maliciously, and without any reasonable cause. It is further alleged that, by reason of the wound so received, plaintiff was confined to his bed for a period of 10 days, during which time he was obliged to employ, and did employ, a physician and nurse, the reasonable value of such services being $100, which sum the plaintiff had obligated himself to pay; that the wound rendered him incapable of performing his duties as special policeman for a period of three weeks. It is further alleged that the injury caused the plaintiff great physical pain, and permanently impaired his health. Plaintiff alleges special and general damages to the amount of $30,150, and asks judgment for that sum, with costs. The defendant, answering the complaint, denies each allegation thereof, and in addition to such denials pleads five separate defenses. These defenses are all, in effect, a justification by reason of unavoidable necessity. A trial resulted in a verdict and judgment for plaintiff for the sum of $3,143. To reverse this judgment, the cause is brought here by appeal.

        5
        Attorneys and Law Firms
        6

        Oscar Reuter and William Young, for appellant.

        7

        F. J. Hangs and S. S. Abbott, for appellee.

        8
        Opinion
        9

        HAYT, C. J. (after stating the facts).

        10

        It is admitted, or proven beyond controversy, that appellee received a gunshot wound at the hands of the appellant at the time and place designated in the complaint, and that, as the result of such wound, the appellee was seriously injured. It is further shown that the shooting occurred under the following circumstances: That Mr. Courvoisier, on the night in question, was asleep in his bed, in the second story of a brick building, situate at the corner of South Broadway and Dakota streets, in South Denver; that he occupied a portion of the lower floor of this building as a jewelry store. He was aroused from his bed, shortly after midnight, by parties shaking or trying to open the door of the jewelry store. These parties, when asked by him as to what they wanted, insisted upon being admitted, and, upon his refusal to comply with this request, they used profane and abusive epithets towards him. Being unable to gain admission, they broke some signs upon the front of the building, and then entered the building by another entrance, and, passing upstairs, commenced knocking upon the door of a room where defendant's sister was sleeping. Courvoisier partly dressed himself, and, taking his revolver, went upstairs, and expelled the intruders from the building. In doing this he passed downstairs, and out on the sidewalk, as far as the entrance to his store, which was at the corner of the building. The parties expelled from the building, upon reaching the rear of the store, were joined by two or three others. In order to frighten these parties away, the defendant fired a shot in the air; but, instead of retreating, they passed around to the street in front, throwing stones and brickbats at the defendant, whereupon he fired a second, and perhaps a third, shot. The first shot fired attracted the attention of plaintiff, Raymond, and two deputy sheriffs, who were at the tramway depot across the street. These officers started towards Mr. Courvoisier, who still continued to shoot; but two of them stopped, when they reached the men in the street, for the purpose of arresting them, Mr. Raymond alone proceeding towards the defendant, calling out to him that he was an officer, and to stop shooting. Although the night was dark, the street was well lighted by electricity, and, when the officer approached him, defendant shaded his eyes, and, taking deliberate aim, fired, causing the injury complained of. The plaintiff's theory of the case is that he was a duly-authorized police officer, and in the discharge of his duties at the time; that the defendant was committing a breach of the peace; and that the defendant, knowing him to be a police officer, recklessly fired the shot in question. The defendant claims that the plaintiff was approaching him at the time in a threatening attitude, and that the surrounding circumstances were such as to cause a reasonable man to believe that his life was in danger, and that it was necessary to shoot in selfdefense, and that defendant did so believe at the time of firing the shot.

        11

        The first error argued brings up for review the action of the district court in overruling a challenge interposed by the defendant to the juror Gibbons. The ground of this challenge will appear from the following: ‘Q. Have you served as a juror within the year last past? A. I was called a few weeks ago on one case in the county court. Q. As a talesmen? A. Yes, sir. The Court: When did you serve, Mr. Gibbons? A. A few weeks ago. The Court: Since the 1st of January? A. Yes, sir.’ The statute relied upon to support the challenge reads as follows: ‘The fact that any juror in any district or county court shall have served as a juror of the regular panel, or as talesman, in either of said courts at any time within the year next preceding shall be a sufficient excuse for such juror from service in the same court and may also be ground for challenge for cause to such individual juror.’ Sess. Laws 1889, p. 220, § 1. The statute limits the exception to service a second time within the year in the same court, and we think it was likewise intended to thus restrict this ground of challenge for cause. This has been the uniform practice under the statute, and we think it must be upheld as the obvious meaning of the act.

        12

        The second error assigned is upon the overruling of defendant's objections to certain hypothetical questions propounded by plaintiff to medical experts. These questions called for the opinion of the witnesses as to the natural result of the wound received by plaintiff. It is claimed that the questions do not describe the wound with sufficient certainty, and that the evidence of the extent of the injury is not sufficient to form a basis for any hypothetical questions, or for expert opinions upon the probable effects of the wound. We think the objections to these questions were properly overruled. The questions contain such a description of the wound as is easily understood by the lay mind, and the answers show that it was fully understood by the experts. The questions are framed upon the assumption that the evidence tended to prove certain facts. This assumption, being within the probable or possible range of the evidence, is permissible. Jackson v. Burnham, 20 Colo. 532, 39 Pac. 577.

        13

        The third assignment of error challenges the refusal of the court to permit witnesses for the defendant to testify as to whether or not, as a result of a criminal prosecution, one of the participants was convicted of ‘throwing a stone and hitting Mr. Courvoisier that night.’ The objection to this question was properly sustained. If proof of such conviction was admissible, the record is the best evidence thereof, except in the instances specified by statute (Mills' Ann. St. § 4822); but, as this action is between other parties, even the record is not admissible in this case. It was attempted to prove, by the witness Reed, who was at the time marshal of the town of South Denver, that the neighborhood in the immediate vicinity of defendant's house had been the scene of frequent robberies and disturbances shortly prior to this shooting. This evidence was offered for the purpose oe justifying the defendant's action. It is claimed that conduct which would cause no apprehension in a quiet and peaceful neighborhood would naturally and reasonably excite alarm if disturbances and breaches of the peace were frequent. We think, however, the court was justified in refusing this evidence. Its tendency is to raise collateral issues, and thereby divert the attention of the jury.

        14

        Under the fourth assignment of error it is claimed that evidence of the financial standing of the defendant was not admissible. If the jury believed, from the evidence, that the shooting was done with malice, or that the injury was the result of a wanton and reckless disregard of plaintiff's rights, and not in necessary self-defense, exemplary damages might have been awarded; and, wherever such damages are permissible, the financial condition of the defendant may be shown. In a number of cases, commencing with Murphy v. Hobbs, 7 Colo. 541, 5 Pac. 119, it has been held that, in civil actions for injuries resulting from torts, exemplary damages, as a punishment, were not permissible, if the offense is punishable under the criminal laws. These decisions were based upon the common law. In 1889 the legislature provided, by statute, that exemplary damages may be given in certain cases. Before the passage of this act the question was one upon which the courts disagreed, but the statute has now settled the practice in this state.

        15

        The next error assigned relates to the instructions given by the court to the jury, and to those requested by the defendant and refused by the court. The second instruction given by the court was clearly erroneous. The instruction is as follows: ‘The court instructs you that if you believe, from the evidence, that, at the time the defendant shot the plaintiff, the plaintiff was not assaulting the defendant, then your verdict should be for the plaintiff.’ The vice of this instruction is that it excluded from the jury a full consideration of the justification claimed by the defendant. The evidence for the plaintiff tends to show that the shooting, if not malicious, was wanton and reckless; but the evidence for the defendant tends to show that the circumstances surrounding him at the time of the shooting were such as to lead a reasonable man to believe that his life was in danger, or that he was in danger of receiving great bodily harm at the hands of the plaintiff, and the defendant testified that he did so believe. He swears that his house was invaded, shortly after midnight, by two men, whom he supposed to be burglars; that, when ejected, they were joined on the outside by three or four others; that the crowd so formed assaulted him with stones and other missiles, when, to frighten them away, he shot into the air; that, instead of going away, some one approached him from the direction of the crowd; that he supposed this person to be one of the rioters, and did not ascertain that it was the plaintiff until after the shooting. He says that he had had no previous acquaintance with plaintiff; that he did not know that he was a police officer, or that there were any police officers in the town of South Denver; that he heard nothing said at the time, by the plaintiff or any one else, that caused him to think the plaintiff was an officer; that his eyesight was greatly impaired, so that he was obliged to use glasses; and that he was without glasses at the time of the shooting, and for this reason could not see distinctly. He then adds: ‘I saw a man come away from the bunch of men, and come up towards me, and as I looked around I saw this man put his hand to his hip pocket. I didn't think I had time to jump aside, and therefore turned around and fired at him. I had no doubts but it was somebody that had come to rob me, because, some weeks before, Mr. Wilson's store was robbed. It is next door to mine.’

        16

        By this evidence two phases of the transaction are presented for consideration: First. Was the plaintiff assaulting the defendant at the time plaintiff was shot? Second. If not, was there sufficient evidence of justification for the consideration of the jury? The first question was properly submitted, but the second was excluded by the instruction under review. The defendant's justification did not rest entirely upon the proof of assault by the plaintiff. A riot was in progress, and the defendant swears that he was attacked with missiles, hit with stones, brickbats, etc.; that he shot plaintiff, supposing him to be one of the rioters. We must assume these facts as established in reviewing the instruction, as we cannot say that the jury might have found had this evidence been submitted to them under a proper charge. By the second instruction, the conduct of those who started the fracas was eliminated from the consideration of the jury. If the jury believed, from the evidence, that the defendant would have been justified in shooting one of the rioters, had such person advanced towards him, as did the plaintiff, then it became important to determine whether the defendant mistook plaintiff for one of the rioters; and, if such a mistake was in fact made, was it excusable, in the light of all the circumstances leading up to and surrounding the commission of the act? If these issues had been resolved by the jury in favor of the defendant, he would have been entitled to a judgment. Morris v. Platt, 32 Conn. 75; Patten v. People, 18 Mich. 318; Kent v. Cole, 84 Mich. 579, 48 N. W. 168; Higgins v. Minaghan, 76 Wis. 298, 45 N. W. 127. The opinion the first of the cases above cited contains an exhaustive review of the authorities, and is very instructive. The action was for damages resulting from a pistol-shot wound. The defendant justified under the plea of self-defense. The proof for the plaintiff tended to show that he was a mere bystander at a riot, when he received a shot aimed at another; and the court held that, if the defendant was justified in firing the shot at his antagonist, he was not liable to the plaintiff, for the reason that the act of shooting was lawful under the circumstances. Where a defendant, in a civil action like the one before us, attempts to justify on a plea of necessary self-defense, he must satisfy the jury, not only that he acted honestly in using force, but that his fears were reasonable under the circumstances, and also as to the reasonableness of the means made use of. In this case, perhaps, the verdict would not have been different, had the jury been properly instructed; but it might have been, and therefore the judgment must be reversed. Reversed.

        17

        Parallel Citations

        18

        47 P. 284

    • 2.3 IV.C. Preservation of Property

      • 2.3.1 Ploof v. Putnam--"The Private Island in the Storm"

        In order to accommodate plaintiff's need to protect his/her own life or property, should society privilege him/her with the right to interfere with another's property?

        1
        71 A. 188
        Supreme Court of Vermont.
        PLOOF
        v.
        PUTNAM.
        Oct. 2, 1908.
        2

        Exceptions from Chittenden County Court; Seneca Haselton, Judge.

        3

        Action by Sylvester A. Ploof against Henry W. Putnam. Heard on demurrer to declaration. Demurrer overruled, and declaration adjudged sufficient, and defendant excepted. Judgment affirmed, and cause remanded.

        5
        Attorneys and Law Firms
        6

        Martin S. Vilas and Cowles & Moulton, for plaintiff.

        7

        Batchelder & Bates, for defendant.

        9
        Opinion
        10

        MUNSON, J.

        11

        It is alleged as the ground on recovery that on the 13th day of November 1904, the defendant was the owner of a certain island in Lake Champlain, and of a certain dock attached thereto, which island and dock were then in charge of the defendant's servant; that the plaintiff was then possessed of and sailing upon said lake a certain loaded sloop, on which were the plaintiff and his wife and two minor children; that there then arose a sudden and violent tempest, whereby the sloop and the property and persons therein were placed in great danger of destruction; that, to save these from destruction or injury, the plaintiff was compelled to, and did, moor the sloop to defendant's dock; that the defendant, by his servant, unmoored the sloop, whereupon it was driven upon the shore by the tempest, without the plaintiff's fault; and that the sloop and its contents were thereby destroyed, and the plaintiff and his wife and children cast into the lake and upon the shore, receiving injuries. This claim is set forth in two counts-one in trespass, charging that the defendant by his servant with force and arms willfully and designedly unmoored the sloop; the other in case, alleging that it was the duty of the defendant by his servant to permit the plaintiff to moor his sloop to the dock, and to permit it to remain so moored during the continuance of the tempest, but that the defendant by his servant, in disregard of this duty, negligently, carelessly, and wrongfully unmoored the sloop. Both counts are demurred to generally.

        12

        There are many cases in the books which hold that necessity, and an inability to control movements inaugurated in the proper exercise of a strict right, will justify entries upon land and interferences with personal property that would otherwise have been trespasses. A reference to a few of these will be sufficient to illustrate the doctrine. In Miller v. Fandrye, Poph. 161, trespass was brought for chasing sheep, and the defendant pleaded that the sheep were trespassing upon his land, and that he with a little dog chased them out, and that, as soon as the sheep were off his land, he called in the dog. It was argued that, although the defendant might lawfully drive the sheep from his own ground with a dog, he had no right to pursue them into the next ground; but the court considered that the defendant might drive the sheep from his land with a dog, and that the nature of a dog is such that he cannot be withdrawn in an instant, and that, as the defendant had done his best to recall the dog, trespass would not lie. In trespass of cattle taken in A., defendant pleaded that he was seised of C. and found the cattle there damage feasant, and chased them towards the pound, and they escaped from him and went into A., and he presently retook them; and this was held a good plea. 21 Edw. IV, 64; Vin. Ab. Trespass, H. a, 4, pl. 19. If one have a way over the land of another for his beasts to pass, and the beasts, being properly driven, feed the grass by morsels in passing, or run out of the way and are promptly pursued and brought back, trespass will not lie. See Vin. Ab. Trespass, K. a, pl. 1. A traveler on a highway who finds it obstructed from a sudden and temporary cause may pass upon the adjoining land without becoming a trespasser because of the necessity. Henn's Case, W. Jones, 296; Campbell v. Race, 7 Cush. (Mass.) 408, 54 Am. Dec. 728; Hyde v. Jamaica, 27 Vt. 443 (459); Morey v. Fitzgerald, 56 Vt. 487, 48 Am. Rep. 811. An entry upon land to save goods which are in danger of being lost or destroyed by water or fire is not a trespass. 21 Hen. VII, 27; Vin. Ab. Trespass, H. a, 4, pl. 24, K. a, pl. 3. In Proctor v. Adams, 113 Mass. 376, 18 Am. Rep. 500, the defendant went upon the plaintiff's beach for the purpose of saving and restoring to the lawful owner a boat which had been driven ashore, and was in danger of being carried off by the sea; and it was held no trespass. See, also, Dunwich v. Sterry, 1 B. & Ad. 831.

        13

        This doctrine of necessity applies with special force to the preservation of human life. One assaulted and in peril of his life may run through the close of another to escape from his assailant. 37 Hen. VII, pl. 26. One may sacrifice the personal property of another to save his life or the lives of his fellows. In Mouse's Case, 12 Co. 63, the defendant was sued for taking and carrying away the plaintiff's casket and its contents. It appeared that the ferryman of Gravesend took 47 passengers into his barge to pass to London, among whom were the plaintiff and defendant; and the barge being upon the water a great tempest happened, and a strong wind, so that the barge and all the passengers were in danger of being lost if certain ponderous things were not cast out, and the defendant thereupon cast out the plaintiff's casket. It was resolved that in case of necessity, to save the lives of the passengers, it was lawful for the defendant, being a passenger, to cast the plaintiff's casket out of the barge; that, if the ferryman surcharge the barge, the owner shall have his remedy upon the surcharge against the ferryman, but that if there be no surcharge, and the danger accrue only by the act of God, as by tempest, without fault of the ferryman, every one ought to bear his loss to safeguard the life of a man.

        14

        It is clear that an entry upon the land of another may be justified by necessity, and that the declaration before us discloses a necessity for mooring the sloop. But the defendant questions the sufficiency of the counts because they do not negative the existence of natural objects to which the plaintiff could have moored with equal safety. The allegations are, in substance, that the stress of a sudden and violent tempest compelled the plaintiff to moor to defendant's dock to save his sloop and the people in it. The averment of necessity is complete, for it covers not only the necessity of mooring to the dock; and the details of the situation which created this necessity, whatever the legal requirements regarding them, are matters of proof, and need not be alleged. It is certain that the rule suggested cannot be held applicable irrespective of circumstance, and the question must be left for adjudication upon proceedings had with reference to the evidence or the charge.

        15

        The defendant insists that the counts are defective, in that they fail to show that the servant in casting off the rope was acting within the scope of his employment. It is said that the allegation that the island and dock were in charge of the servant does not imply authority to do an unlawful act, and that the allegations as a whole fairly indicate that the servant unmoored the sloop for a wrongful purpose of his own, and not by virtue of any general authority or special instruction received from the defendant. But we think the counts are sufficient in this respect. The allegation is that the defendant did this by his servant. The words “willfully, and designedly” in one count, and “negligently, carelessly, and wrongfully” in the other, are not applied to the servant, but to the defendant acting through the servant. The necessary implication is that the servant was acting within the scope of his employment. 13 Ency. P. & Pr. 922; Voegeli v. Pickel Marble, etc., Co., 49 Mo. App. 643; Wabash Ry. Co. v. Savage, 110 Ind. 156, 9 N. E. 85. See, also, Palmer v. St. Albans, 60 Vt. 427, 13 Atl. 569, 6 Am. St. Rep. 125.

        16

        Judgment affirmed and cause remanded.

        17
        Parallel Citations
        18

        71 A. 188, 20 L.R.A.N.S. 152, 130 Am.St.Rep. 1072, 15 Am.Ann.Cas. 1151

      • 2.3.2 Vincent v. Lake Erie Transp. Co.--"The Boat That Slammed Against the Dock"

        Should defendants be privileged in protecting their own property at the expense of another’s property? If so, does the court “demand” anything from the plaintiff in exchange for the privilege?

        1
        124 N.W. 221
        Supreme Court of Minnesota.
        VINCENT et al.
        v.
        LAKE ERIE TRANSP. CO.
        Jan. 14, 1910.
        2

        Appeal from District Court, St. Louis County; J. D. Ensign, Judge.

        3

        Action by R. C. Vincent and others against the Lake Erie Transportation Company. Verdict for plaintiffs. From an order denying a new trial, defendant appeals. Affirmed.

        4
        Syllabus by the Court
        5

        Where, under stress of weather, a master, for the purpose of preserving his vessel, maintains her moorings to a dock after the full discharge of the vessel's cargo, and the dock is damaged by the striking and pounding of the vessel, the dock owner may recover from the shipowner for the injury sustained, although prudent seamanship required the master to follow the course pursued.

        7
        Attorneys and Law Firms
        8

        H. R. Spencer, for appellant.

        9

        Alford & Hunt, for respondents.

        11
        Opinion
        12

        O'BRIEN, J.

        13

        The steamship Reynolds, owned by the defendant, was for the purpose of discharging her cargo on November 27, 1905, moored to plaintiff's dock in Duluth. While the unloading of the boat was taking place a storm from the northeast developed, which at about 10 o'clock p. m., when the unloading was completed, had so grown in violence that the wind was then moving at 50 miles per hour and continued to increase during the night. There is some evidence that one, and perhaps two, boats were able to enter the harbor that night, but it is plain that navigation was practically suspended from the hour mentioned until the morning of the 29th, when the storm abated, and during that time no master would have been justified in attempting to navigate his vessel, if he could avoid doing so. After the discharge of the cargo the Reynolds signaled for a tug to tow her from the dock, but none could be obtained because of the severity of the storm. If the lines holding the ship to the dock had been cast off, she would doubtless have drifted away; but, instead, the lines were kept fast, and as soon as one parted or chafed it was replaced, sometimes with a larger one. The vessel lay upon the outside of the dock, her bow to the east, the wind and waves striking her starboard quarter with such force that she was constantly being lifted and thrown against the dock, resulting in its damage, as found by the jury, to the amount of $500.

        14

        We are satisfied that the character of the storm was such that it would have been highly imprudent for the master of the Reynolds to have attempted to leave the dock or to have permitted his vessel to drift a way from it. One witness testified upon the trial that the vessel could have been warped into a slip, and that, if the attempt to bring the ship into the slip had failed, the worst that could have happened would be that the vessel would have been blown ashore upon a soft and muddy bank. The witness was not present in Duluth at the time of the storm, and, while he may have been right in his conclusions, those in charge of the dock and the vessel at the time of the storm were not required to use the highest human intelligence, nor were they required to resort to every possible experiment which could be suggested for the preservation of their property. Nothing more was demanded of them than ordinary prudence and care, and the record in this case fully sustains the contention of the appellant that, in holding the vessel fast to the dock, those in charge of her exercised good judgment and prudent seamanship.

        15

        It is claimed by the respondent that it was negligence to moor the boat at an exposed part of the wharf, and to continue in that position after it became apparent that the storm was to be more than usually severe. We do not agree with this position. The part of the wharf where the vessel was moored appears to have been commonly used for that purpose. It was situated within the harbor at Duluth, and must, we think, be considered a proper and safe place, and would undoubtedly have been such during what would be considered a very severe storm. The storm which made it unsafe was one which surpassed in violence any which might have reasonably been anticipated.

        16

        The appellant contends by ample assignments of error that, because its conduct during the storm was rendered necessary by prudence and good seamanship under conditions over which it had no control, it cannot be held liable for any injury resulting to the property of others, and claims that the jury should have been so instructed. An analysis of the charge given by the trial court is not necessary, as in our opinion the only question for the jury was the amount of damages which the plaintiffs were entitled to recover, and no complaint is made upon that score.

        17

        The situation was one in which the ordinary rules regulating properly rights were suspended by forces beyond human control, and if, without the direct intervention of some act by the one sought to be held liable, the property of another was injured, such injury must be attributed to the act of God, and not to the wrongful act of the person sought to be charged. If during the storm the Reynolds had entered the harbor, and while there had become disabled and been thrown against the plaintiffs' dock, the plaintiffs could not have recovered. Again, if which attempting to hold fast to the dock the lines had parted, without any negligence, and the vessel carried against some other boat or dock in the harbor, there would be no liability upon her owner. But here those in charge of the vessel deliberately and by their direct efforts held her in such a position that the damage to the dock resulted, and, having thus preserved the ship at the expense of the dock, it seems to us that her owners are responsible to the dock owners to the extent of the injury inflicted.

        18

        In Depue v. Flatau, 100 Minn. 299, 111 N. W. 1, 8 L. R. A. (N. S.) 485, this court held that where the plaintiff, while lawfully in the defendants' house, became so ill that he was incapable of traveling with safety, the defendants were responsible to him in damages for compelling him to leave the premises. If, however, the owner of the premises had furnished the traveler with proper accommodations and medical attendance, would he have been able to defeat an action brought against him for their reasonable worth?

        19

        In Ploof v. Putnam, 71 Atl. 188, 20 L. R. A. (N. S.) 152, the Supreme Court of Vermont held that where, under stress of weather, a vessel was without permission moored to a private dock at an island in Lake Champlain owned by the defendant, the plaintiff was not guilty of trespass, and that the defendant was responsible in damages because his representative upon the island unmoored the vessel, permitting it to drift upon the shore, with resultant injuries to it. If, in that case, the vessel had been permitted to remain, and the dock had suffered an injury, we believe the shipowner would have been held liable for the injury done.

        20

        Theologians hold that a starving man may, without moral guilt, take what is necessary to sustain life; but it could hardly be said that the obligation would not be upon such person to pay the value of the property so taken when he became able to do so. And so public necessity, in times of war or peace, may require the taking of private property for public purposes; but under our system of jurisprudence compensation must be made.

        21

        Let us imagine in this case that for the better mooring of the vessel those in charge of her had appropriated a valuable cable lying upon the dock. No matter how justifiable such appropriation might have been, it would not be claimed that, because of the overwhelming necessity of the situation, the owner of the cable could not recover its value.

        22

        This is not a case where life or property was menaced by any object or thing belonging to the plaintiff, the destruction of which became necessary to prevent the threatened disaster. Nor is it a case where, because of the act of God, or unavoidable accident, the infliction of the injury was beyond the control of the defendant, but is one where the defendant prudently and advisedly availed itself of the plaintiffs' property for the purpose of preserving its own more valuable property, and the plaintiffs are entitled to compensation for the injury done.

        23

        Order affirmed.

        24

        LEWIS, J.

        25

        I dissent. It was assumed on the trial before the lower court that appellant's liability depended on whether the master of the ship might, in the exercise of reasonable care, have sought a place of safety before the storm made it impossible to leave the dock. The majority opinion assumes that the evidence is conclusive that appellant moored its boat at respondent's dock pursuant to contract, and that the vessel was lawfully in position at the time the additional cables were fastened to the dock, and the reasoning of the opinion is that, because appellant made use of the stronger cables to hold the boat in position, it became liable under the rule that it had voluntarily made use of the property of another for the purpose of saving its own. In my judgment, if the boat was lawfully in position at the time the storm broke, and the master could not, in the exercise of due care, have left that position without subjecting his vessel to the hazards of the storm, then the damage to the dock, caused by the pounding of the boat, was the result of an inevitable accident. If the master was in the exercise of due care, he was not at fault. The reasoning of the opinion admits that if the ropes, or cables, first attached to the dock had not parted, or if, in the first instance, the master had used the stronger cables, there would be no liability. If the master could not, in the exercise of reasonable care, have anticipated the severity of the storm and sought a place of safety before it became impossible, why should he be required to anticipate the severity of the storm, and, in the first instance, use the stronger cables?

        26

        I am of the opinion that one who constructs a dock to the navigable line of waters, and enters into contractual relations with the owner of a vessel to moor at the same, takes the risk of damage to his dock by a boat caught there by a storm, which event could not have been avoided in the exercise of due care, and further, that the legal status of the parties in such a case is not changed by renewal of cables to keep the boat from being cast adrift at the mercy of the tempest.

        27

        JAGGARD, J., concurs herein.

        29

        Parallel Citations

        30

        124 N.W. 221, 27 L.R.A.N.S. 312

    • 2.4 IV.D. Beyond the Common Law - Statutory Exceptions and Constitutional Protections

      • 2.4.1 Barbara A. v. John G.--"The Lying, Impregnating Attorney"

        How should the court evaluate defenses that come from different sources of law?

        1

        193 Cal.Rptr. 422Court of Appeal, First District, Division 3, California.

        BARBARA A., Cross-complainant and Appellant,

        v.

        JOHN G., Cross-defendant and Respondent.

        A012960.Civ. 50953.July 26, 1983.

        Hearing Denied Sept. 29, 1983.
        2

        Attorney filed suit against female client seeking to recover attorney fees for representation in a family law matter. Female client filed cross complaint seeking to recover damages for injuries sustained when she suffered an ectopic pregnancy after she engaged in intercourse with the attorney who made a false representation that “I can't possibly get anyone pregnant.” The Superior Court, Napa County, Raymond J. Sherwin, J., dismissed the cross complaint, and appeal was taken. The Court of Appeal, Barry-Deal, J., held that: (1) the female client could maintain her action on theories of deceit and battery; (2) the action was not barred by the statute prohibiting a cause of action for seduction; (3) the rule that one parent cannot maintain an action against the other for wrongful birth of a child, even if the woman misrepresented whether she was using a birth control method, did not bar the suit; (4) the constitutional right to privacy did not shield the attorney from liability; and (5) the former client would be required to prove the existence of a confidential relationship and, if that relationship was established, the attorney would then have the burden of proving that consent to intercourse was informed and freely given in battery cause of action or, in the alternative, that the client's reliance was unjustified in the misrepresentation cause of action.

        3

        Judgment reversed.

        4

        Scott, Acting P.J., dissented with an opinion.

        6

        Attorneys and Law Firms

        7

        Mary Cynthia Dunlap, San Francisco, for cross-complainant and appellant.

        8

        Long & Levit, Ronald E. Mallen, Donald W. Carlson, Marsha L. Morrow, San Francisco, for cross-defendant and respondent.

        9
        Opinion
        10

        BARRY–DEAL, Associate Justice.

        11

        The issue presented in this appeal is whether a woman (appellant) suffering injuries from an ectopic pregnancy [1] has a cause of action in tort against the responsible man (respondent) for his misrepresentations of infertility. The trial court ruled that no cause of action would lie and granted respondent's motion for judgment on the pleadings. We reverse the judgment.

        12

        I. Procedural Background

        13

        Respondent, an attorney, filed an action in municipal court against appellant for $1,520 in fees for representing her in a family law matter. Appellant filed her answer and a cross-complaint for damages alleging, inter alia, fraud and legal malpractice, and the action was transferred to the superior court. After a demurrer to the cross-complaint was filed, appellant by stipulation filed her first amended cross-complaint, which is the subject of this appeal. After several hearings on the demurrer to the amended cross-complaint, the court (Kongsgaard, J.) sustained a demurrer to the count alleging intentional/negligent infliction of emotional distress and dismissed the two counts alleging legal malpractice for appellant's failure to amend. [2] The court overruled the demurrer to the count alleging battery and the one alleging intentional misrepresentation, in spite of respondent's argument that an action was barred by Civil Code section 43.5, the “anti-heart balm” statute. [3]

        15

        II. Standard of Review and Factual Allegations

        16

        A motion for judgment on the pleadings based on failure to state a cause of action has a function similar to that of a general demurrer. (See 4 Witkin, Cal Procedure (2d ed. 1971) Proceedings Without Trial, §§ 161–170, pp. 2816–2823.) On review of the judgment in either case, all material facts alleged in the pleading under attack must be accepted as true. [4] (Marvin v. Marvin (1976) 18 Cal.3d 660, 666, 134 Cal.Rptr. 815, 557 P.2d 106; Kachig v. Boothe (1971) 22 Cal.App.3d 626, 630, 99 Cal.Rptr. 393.) As a reviewing court, we, of course, are not bound by the trial court's determination on whether the alleged facts state a cause of action. With these rules in mind, we summarize the essential facts alleged in appellant's first amended cross-complaint.

        17

        Appellant and respondent met about April 1978. Appellant retained respondent, an attorney, to represent her in a post-dissolution proceeding for modification of spousal support and child support for her three children; the legal relationship was in existence at the time of the alleged events. On two occasions, June 25 and June 30, 1978, she and respondent had sexual intercourse with each other. Before they engaged in sexual intercourse the first time, appellant demanded that respondent use a contraceptive device, i.e., a condom, and explained that for emotional and financial reasons she did not want to become pregnant. Appellant further told respondent “... that she would not engage in sexual intercourse with him if there was any likelihood of her becoming pregnant; ...” Respondent told appellant not to worry, saying, “ ‘I can't possibly get anyone pregnant.’ ” She understood this to mean that he was sterile by nature or as the result of a vasectomy.

        18

        Respondent's representation about his procreative inability was false, and he knew it was false. It was made with the intent to induce appellant to engage in sexual intercourse, protected or not. Appellant, relying on respondent's assurance of his sterility, consented to and did engage in sexual intercourse with respondent. The attorney-client relationship produced in appellant a sense of trust in respondent, and she justifiably relied on his representations.

        19

        As a result of sexual intercourse with respondent, appellant became pregnant. The pregnancy was determined to be tubal, and, as a consequence, appellant was forced to undergo surgery to save her life. Her Fallopian tube was removed, and she was rendered sterile by the surgery. [5] She suffered physical, emotional, and financial injuries as a result of the pregnancy.

        20

        III. Cause of Action on Theories of Battery or Deceit

        21

        Based on the alleged facts, appellant has stated a cause of action in battery, i.e., an unconsented invasion of her interest in freedom from intentional, unlawful, and harmful or offensive contact with her person. (See Prosser, Torts (4th ed. 1971) § 9, pp. 34–37 [hereafter cited as Prosser]; 4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 194, pp. 2482–2483.) Consent to an act, otherwise a battery, normally vitiates the wrong. (Delia S. v. Torres (1982) 134 Cal.App.3d 471, 480, 184 Cal.Rptr. 787; Prosser, supra, § 18, p. 101.) However, appellant has alleged alternate grounds for invalidating her consent and rendering respondent's act a battery: (1) that the act of impregnation exceeded the scope of the consent (see Cobbs v. Grant (1972) 8 Cal.3d 229, 239–240, 104 Cal.Rptr. 505, 502 P.2d 1; Estrada v. Orwitz (1946) 75 Cal.App.2d 54, 57, 170 P.2d 43), and (2) that the consent to intercourse was fraudulently induced (Prosser, supra, § 18, p. 105; see Butler v. Collins (1859) 12 Cal. 457, 463). As she has alleged physical, emotional, and financial damage proximately caused by the wrongful touching, appellant's cause of action for battery was sufficiently pleaded.

        22

        As an alternative theory for recovery in tort, appellant pleaded deceit, an action sanctioned by Civil Code section 1709, which provides: “One who willfully deceives another with intent to induce him [or her] to alter his [or her] position to his [or her] injury or risk, is liable for any damage which he [or she] thereby suffers.” Deceit, within the meaning of section 1709, is defined by Civil Code section 1710 [6] to include both fraudulent misrepresentations (“The suggestion, as a fact, of that which is not true, by one who does not believe it to be true ...”) and negligent misrepresentations (“The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true ...”). (See, generally, 4 Witkin, Summary of Cal.Law, Torts, supra, §§ 445–482, pp. 2710–2744; Prosser,supra, ch. 18, §§ 105–110, pp. 683–736; Rest.2d Torts, §§ 310, 557A.)In pleading a cause of action for deceit, a plaintiff must specifically plead the following elements: (1) a false representation (ordinarily of a fact) made by the defendant; (2) knowledge or belief on the part of the defendant that the representation is false, or that the representation was made by defendant without reasonable grounds for believing its truth; (3) an intention to induce the plaintiff to act or to refrain from action in reliance upon the misrepresentation; (4) justifiable reliance upon the representation by the plaintiff; (5) damage to the plaintiff, resulting from such reliance. (See Prosser, supra, § 105, pp. 685–686; Gagne v. Bertran (1954) 43 Cal.2d 481, 487–489, 275 P.2d 15; O'Hara v. Western Seven Trees Corp. (1977) 75 Cal.App.3d 798, 804–805, 142 Cal.Rptr. 487.)

        23

        Appellant has pleaded all the essential allegations, as set forth above, of a cause of action for deceit. Respondent's challenge to the sufficiency of the pleading, i.e., “She does not allege that she asked him what he meant by that ambiguous statement [‘I can't possibly get anyone pregnant’] ...,” is meritless. His proposed allegation relates to proof of justifiable reliance at trial, not to sufficiency of the pleading.

        24
        IV. Basic Rule
        25

        It is a fundamental principle of our system of jurisprudence that for every legal wrong there is a remedy (Civ.Code, § 3523), and that an injured party should be compensated for all damage proximately caused by the wrongdoer unless a departure from the basic principle is mandated by a legislative exception or by strong public policy. (Crisci v. Security Ins. Co. (1967) 66 Cal.2d 425, 433, 58 Cal.Rptr. 13, 426 P.2d 173; Murdock v. Murdock (1920) 49 Cal.App. 775, 782–783, 194 P. 762, citing Civ.Code, §§ 1667, 1708, 1709, 3523, and 2224; cf. Rowland v. Christian (1968) 69 Cal.2d 108, 111–112, 70 Cal.Rptr. 97, 443 P.2d 561, characterizing Civ.Code, § 1714, as a basic principle of tort law.)

        26
        V. The “Anti-Heart Balm” Statute
        27

        Respondent asserts that appellant's action comes within the statutory exception declared in Civil Code section 43.5 and is thus barred. We find that statute is not applicable. Section 43.5 provides, in relevant part, “No cause of action arises for: ... [¶] (c) Seduction ....” The word “[s]eduction,” as used in the statute, is a term of art involving elements substantively different from those alleged by appellant.

        28

        “Seduction imports the idea of illicit intercourse accomplished by the use of arts, persuasions, or wiles to overcome the resistance of a female who is not disposed of her own volition to step aside from the paths of virtue. [Citation.]” (Davis v. Stroud (1942) 52 Cal.App.2d 308, 317, 126 P.2d 409.) It is no longer possible for two consenting adults in the State of California to engage in “illicit intercourse.” (See Note, California “Consenting Adults” Law: The Sex Act in Perspective (1976) 13 San Diego L.Rev. 439.)

        29

        The old action for seduction required that the woman was “... chaste and virtuous at the time of the alleged seduction ...” (Davis v. Stroud, supra, 52 Cal.App.2d at p. 316, 126 P.2d 409), and it was used primarily to protect young, inexperienced women who had succumbed to the sexual advances of older men. (See Carter v. Murphy (1938) 10 Cal.2d 547, 75 P.2d 1072.)

        30

        In the instant case appellant complains not because her virtue was violated or because she suffered humiliation and loss of reputation, but because the sexual act was unprotected and led to an ectopic pregnancy as a result of respondent's misrepresentation. The gravamen of the complaint in this situation is substantially different from an action for “[s]eduction,” which is indeed precluded by Civil Code section 43.5. [7] (Cf. Mack v. White (1950) 97 Cal.App.2d 497, 500, 218 P.2d 76.)

        31

        Nevertheless, respondent argues that the public policy considerations underlying the statutory bar to seduction actions are sound and are applicable to the case before us. He points out that seduction actions are “... fruitful sources of fraud and extortion because of the ease with which they may be employed to embarrass, harass and besmirch the reputation of one wholly innocent of wrongdoing ...,” quoting from Ikuta v. Ikuta (1950) 97 Cal.App.2d 787, 789, 218 P.2d 854. He predicts a multitude of unfounded or fraudulent claims if appellant's claim is allowed.

        32

        Our Supreme Court has held that fear of unfounded or fraudulent claims is not a valid reason for disallowing a tort action predicated upon a meritorious claim. In Dillon v. Legg (1968) 68 Cal.2d 728, 69 Cal.Rptr. 72, 441 P.2d 912, the court stated: “[t]he possibility that some fraud will escape detection does not justify an abdication of the judicial responsibility to award damages for sound claims: if it is ‘to be conceded that our procedural system for the ascertainment of truth is inadequate to defeat fraudulent claims ..., the result is a virtual acknowledgment that the courts are unable to render justice in respect to them.’ [Citation.]” (Id., at p. 737, 69 Cal.Rptr. 72, 441 P.2d 912.) The reasoning is sound and is applicable to the case before us.

        33
        VI. Inapplicability of Stephen K.
        34

        Appellant argues that the trial court mistakenly relied on Stephen K. v. Roni L., supra, 105 Cal.App.3d 640, 164 Cal.Rptr. 618, because that case is factually distinguishable and the public policy considerations underlying the two actions differ. Respondent reiterates that appellant's action contravenes public policy “... to eliminate governmental intervention into private sexual dealings ...,” as enunciated in Stephen K.

        35

        In that case, Stephen, the defendant in a paternity action, after admitting paternity, cross-complained against Roni, the mother of the child, claiming that she had falsely represented that she was taking birth control pills. The father alleged that in reliance upon such representation, he engaged in sexual intercourse with Roni, which eventually resulted in the birth of a baby unwanted by the father. He further alleged that as a proximate result of the misrepresentation, he had become obligated to support the child financially and had suffered mental distress.

        36

        In affirming the dismissal of Stephen's cross-complaint, the court held that Roni's misrepresentation was not actionable and gave rise to no liability. (Id., at p. 642, 164 Cal.Rptr. 618.) In summary, the court concluded that “... the circumstances and the highly intimate nature of the relationship wherein the false representations may have occurred, are such that a court should not define any standard of conduct therefor.” (Id., at p. 643, 164 Cal.Rptr. 618.) The court added that to “... supervise the promises made between two consenting adults as to the circumstances of their private sexual conduct ... would encourage unwarranted governmental intrusion into matters affecting the individual's right to privacy ...,” and that “... as a matter of public policy the practice of birth control, if any, engaged in by two partners in a consensual sexual relationship is best left to the individuals involved, free from any governmental interference.” (Id., at pp. 644–645, 164 Cal.Rptr. 618.)

        37

        The facts in Stephen K. and in the case before us, both based on deceit, are obviously similar. A significant distinction between the cases, however, lies in the element of damage. In essence, Stephen was seeking damages for the “wrongful birth” of his child [8] resulting in support obligations and alleged damages for mental suffering. Here, no child is involved; appellant is seeking damages for severe injury to her own body.

        38

        Although the Stephen K. court alluded to Stephen's claim as separate and apart from the issue of either parent's obligation to raise and support the child, it reached its decision without attempting to resolve the problem of the mother's reduced financial ability to support the child if she were required to pay damages to the father. We think this concern over the child, and not governmental intrusion into private sexual matters, which we discuss below, is the central issue in Stephen K. and compels different public policy considerations.

        39

        Civil Code section 196a imposes on the natural father as well as the natural mother of a child the obligation to give the child support and education suitable to his or her circumstances. To assess damages against the mother for false representations about birth control would have the practical effect of reducing or eliminating support from the father by way of offset. Erasing much or all of the father's financial support, to the detriment of the child, is clearly against public policy and the statutory mandate.

        40

        Further, we think it is not sound social policy to allow one parent to sue the other over the wrongful birth of their child. Using the child as the damage element in a tortious claim of one parent against the other could seldom, if ever, result in benefit to a child. [9] Such a lawsuit would indeed be strong evidence of parental rejection, which could only be emotionally detrimental to the child. Such an action, with its potential for engendering disharmony between a mother and father, would also be contrary to the spirit of the recent legislation providing for mediation between parents in order to reduce acrimony. (See Civ.Code, § 4607.)In short, we agree with the Stephen K. court that Roni's misrepresentation was not actionable, but we find that different policy reasons justify that result. The question remains, however, whether allowing appellant's action in the case before us encourages “... unwarranted governmental intrusion into matters affecting the individual's right to privacy ...” and thus contravenes public policy.

        41
        VII. Privacy Right Not Absolute[10]
        43

        The constitutional right to privacy extends to all matters relating to marriage, family, and sex. (People v. Belous (1969) 71 Cal.2d 954, 963, 80 Cal.Rptr. 354, 458 P.2d 194; Cal. Const., art. I, § 1; Stanley v. Georgia (1968) 394 U.S. 557, 564, 89 S.Ct. 1243, 1247–48, 22 L.Ed.2d 542; Griswold v. Connecticut (1965) 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510; Eisenstadt v. Baird (1972) 405 U.S. 438, 92 S.Ct. 1029, 31 L.Ed.2d 349.) The right to privacy, however, is not absolute, and governmental intervention in matters affecting an individual's right to privacy in sexual matters has been sanctioned in both criminal and civil law.

        44

        California has adopted a general scheme for the regulation of the criminal aspects of sexual activity and has determined when sexual intercourse between persons not married to each other shall be criminal. (In re Lane (1962) 58 Cal.2d 99, 102–104, 22 Cal.Rptr. 857, 372 P.2d 897 [citing specific penal statutes].) Prosecution under many of the penal statutes, covering both consensual and forcible sexual acts, often requires testimony of a far more intimate sexual nature than in the case before us. The victim of many of the proscribed acts suffers an invasion of privacy in both the act and the required testimony. And, the state has a fundamental right to enact laws which promote public health, welfare, and safety, even though such laws may invade the offender's right of privacy. (People v. Mills (1978) 81 Cal.App.3d 171, 181, 146 Cal.Rptr. 411 [compulsory registration of convicted sex offenders].)

        45

        Even sexual relations within marriage, long held sacrosanct, have recently been opened to scrutiny when a spouse complains of forcible sexual intercourse. (Pen.Code, § 262.) The ancient policy of protecting the privacy of the marriage bed is outweighed in the modern view by the grievous harm to a man or woman caused by spousal rape. (See Freeman, “But If You Can't Rape Your Wife, Who[m] Can You Rape?”: The Marital Rape Exemption Re-Examined (1981) 15 Family L.Q. 1.)In the civil law, for example, our Legislature has recently amended Evidence Code section 621 to state a limited exception to the rule that the issue of a wife cohabiting with her husband, who is not impotent or sterile, is conclusively presumed to be a child of the marriage. (See also Civ.Code, § 7004, subd. (a).) Either husband or wife, under certain circumstances, can bring an action to establish that the husband is not the biological father of his wife's child. (Evid.Code, § 621; cf. Michelle W. v. Ronald W. (1983) 139 Cal.App.3d 24, 188 Cal.Rptr. 413.) Here, traditional notions about the inviolability of certain aspects of human relationships have given way to recognition that former “protection” in reality worked hardship and injustice in many cases.Where paternity of a child is at issue, the mother cannot refuse to answer all relevant questions about her sexual activity on the plea that it is a private matter. Her right of privacy must yield to “ ‘the historically important state interest of facilitating the ascertainment of truth in ... legal proceedings.’ [Citation.]” ( Fults v. Superior Court (1979) 88 Cal.App.3d 899, 904, 152 Cal.Rptr. 210.) Nor can a man invoke the right of privacy to avoid a determination of paternity of a child he has fathered. (See Uniform Parentage Act (Civ.Code, §§ 7000–7021).)

        46

        Although the right to privacy is a freedom to be carefully guarded, it is evident that it does not insulate a person from all judicial inquiry into his or her sexual relations. We do not think it should insulate from liability one sexual partner who by intentionally tortious conduct causes physical injury to the other. (Cf. Marvin v. Marvin, supra, 18 Cal.3d 660, 682, fn. 21, 134 Cal.Rptr. 815, 557 P.2d 106.) Public policy does not demand such protection for the right of privacy.

        47
        VIII. Analogy to Venereal Disease Cases
        48

        Three out-of-state cases, without discussing public policy or the right to privacy, have held that a woman's consent to sexual intercourse was vitiated by the man's fraudulent concealment of the risk of infection with venereal disease or infestation with vermin. (See De Vall v. Strunk (Tex.Civ.App.1936) 96 S.W.2d 245 [single woman, seduced by promise of marriage, had action in battery against man who infected her with crab lice]; Crowell v. Crowell (1920) 180 N.C. 516 [105 S.E. 206] [wife was not under disability to maintain action for battery or fraud against husband for infecting her with venereal disease]; State v. Lankford (1917) 29 Del. 594 [102 A. 63] [man convicted of battery for fraudulently concealing venereal disease and infecting wife]; see Prosser, supra, § 18, p. 105.)

        49

        These old cases lend support to allowing the within action, in spite of the language in each case extolling the virtuous character of the woman involved.

        50

        We do not assess the wisdom nor predict the future course in the retreat from the double standard of morality for men and women in sexual matters. We do not think, however, at this stage of social mores, that it is relevant to judge appellant's action on the basis of morality.

        51
        IX. Violation of Fiduciary Obligation
        52

        Appellant and respondent differ markedly in their assessment of the impact of the attorney-client relationship in the case before us. Appellant contends that a fiduciary obligation extends to any type of conduct by which an attorney seeks to benefit at the client's expense. Respondent replies that no legal authority imposes on an attorney the burden of a fiduciary obligation with respect to his or her personal relations with a client. The parties have cited no case directly on point, and we can find none.

        53

        It is evident, however, that the lawyer-client relationship affects the proof of appellant's cause of action at trial, rather than the sufficiency of the pleadings. Because of the importance of the issue, we offer the following comments for the guidance of the trial court in further proceedings.

        54

        “[F]iduciary” and “confidential” have been used synonymously to describe “ ‘... any relation existing between parties to a transaction wherein one of the parties is in duty bound to act with the utmost good faith for the benefit of the other party. Such a relation ordinarily arises where a confidence is reposed by one person in the integrity of another, and in such a relation the party in whom the confidence is reposed, if he [or she] voluntarily accepts or assumes to accept the confidence, can take no advantage from his [or her] acts relating to the interest of the other party without the latter's knowledge or consent....’ ” (Herbert v. Lankershim (1937) 9 Cal.2d 409, 483, 71 P.2d 220; Bacon v. Soule (1912) 19 Cal.App. 428, 434, 126 P. 384.) Technically, a fiduciary relationship is a recognized legal relationship such as guardian and ward, trustee and beneficiary, principal and agent, or attorney and client (see Frankel, Fiduciary Law (1983) 71 Cal.L.Rev. 795), whereas a “confidential relationship” may be founded on a moral, social, domestic, or merely personal relationship as well as on a legal relationship. (See Stevens v. Marco (1956) 147 Cal.App.2d 357, 374, 305 P.2d 669; Bolander v. Thompson (1943) 57 Cal.App.2d 444, 447, 134 P.2d 924; Robbins v. Law (1920) 48 Cal.App. 555, 561, 192 P. 118.) The essence of a fiduciary or confidential relationship is that the parties do not deal on equal terms, because the person in whom trust and confidence is reposed and who accepts that trust and confidence is in a superior position to exert unique influence over the dependent party.

        55

        Our Supreme Court has stated that “[t]he relation between attorney and client is a fidicuary relation of the very highest character, and binds the attorney to most conscientious fidelity ....” (Cox v. Delmas (1893) 99 Cal. 104, 123, 33 P. 836; see also Rader v. Thrasher (1962) 57 Cal.2d 244, 250, 18 Cal.Rptr. 736, 368 P.2d 360; Sanguinetti v. Rossen (1906) 12 Cal.App. 623, 630, 107 P. 560; 1 Witkin, Cal.Procedure (2d ed. 1970) Attorneys, §§ 47–54, pp. 55–62.) Further, the court has admonished that “[a] member of the State Bar should not under any circumstances attempt to deceive another person, ...” (Cutler v. State Bar (1969) 71 Cal.2d 241, 252, 78 Cal.Rptr. 172, 455 P.2d 108; McKinney v. State Bar (1964) 62 Cal.2d 194, 196, 41 Cal.Rptr. 665, 397 P.2d 425; cf. Bus. & Prof.Code, § 6106.) Numerous cases have applied these basic principles where an attorney in breaching the fiduciary obligation has gained financial advantage. (See, e.g., Cutler v. State Bar, supra, 71 Cal.2d at p. 251, 78 Cal.Rptr. 172, 455 P.2d 108; Gold v. Greenwald (1966) 247 Cal.App.2d 296, 309–310, 55 Cal.Rptr. 660; Clark v. Millsap (1926) 197 Cal. 765, 783, 786, 242 P. 918.) We can find no valid reason to restrict these principles to actions involving financial claims of a client and not to apply them to actions in which the client alleges physical damage resulting from a violation of the attorney's fiduciary obligation.

        56

        Generally, the existence of a confidential relationship is a question of fact for the jury or the trial court. (Rieger v. Rich (1958) 163 Cal.App.2d 651, 664, 329 P.2d 770; Wilson v. Sampson (1949) 91 Cal.App.2d 453, 459, 205 P.2d 753; Estate of Llewellyn (1948) 83 Cal.App.2d 534, 562, 189 P.2d 822; Wilson v. Zorb (1936) 15 Cal.App.2d 526, 532, 55 P.2d 593; see 7 Witkin, Summary of Cal.Law (8th ed. 1974) Wills and Probate, § 112, p. 5626.) Where a legally recognized fiduciary relationship exists, however, the law infers a confidential relationship, i.e., it becomes a question of law for the court. (Rader v. Thrasher, supra, 57 Cal.2d 244, 250, 18 Cal.Rptr. 736, 368 P.2d 360; Sime v. Malouf (1949) 95 Cal.App.2d 82, 98, 212 P.2d 946.) If the fact finder determines that a confidential relationship exists or the court determines as a matter of law that a fiduciary relationship exists, it is presumed that the one in whom trust and confidence is reposed has exerted undue influence. (Rader v. Thrasher, supra, 57 Cal.2d 244, 250, 18 Cal.Rptr. 736, 368 P.2d 360; Roeder v. Roeder (1953) 118 Cal.App.2d 572, 580, 258 P.2d 581.) Because a presumption is no longer independent evidence, the effect of the presumption of undue influence is to shift the burden of proof to the fiduciary. (Evid.Code, § 600, subd. (a); 1 Witkin, Cal.Procedure, Attorneys, supra, § 51, p. 60.) The undue influence in the case before us is, of course, relevant on the issue of consent in appellant's cause of action for battery and on the issue of justifiable reliance in her cause of action for misrepresentation.

        57

        Nevertheless, the unique facts in the case before us compel a more cautious approach in imposing on respondent, as a matter of law, the highest fiduciary standard in all his relations with appellant, social as well as legal. The existence of a confidential relationship between appellant and respondent is more properly a question of fact for the jury, or court, who can better assess whether the legal relationship was dominant or whether the parties functioned on a more equal basis in their personal relations. Thus, appellant would have the burden of proving the existence of a confidential relationship. If such a relationship were established, respondent would then have the burden of proving that consent was informed and freely given in the battery cause of action, or, in the alternative, that her reliance was unjustified in the misrepresentation cause of action. To hold otherwise would have a chilling and far- reaching effect on any personal relations between an attorney and his or her clients. The possibility of a factual determination of a confidential relationship should be a sufficient warning to monitor the profession in personal or social relations with clients.

        58

        We decline to address another issue indirectly raised by appellant—one of first impression in California, at least as far as statutes, cases, and rules are concerned. She asserts that it is a breach of ethics for an attorney, particularly in a family law context, to induce a client to have sexual relations during the course of the representation, and she points out that other professions have imposed discipline on a member for sexual misconduct with a patient. (See, e.g., Dresser v. Board of Medical Quality Assurance (1982) 130 Cal.App.3d 506, 181 Cal.Rptr. 797; Cooper v. Board of Medical Examiners (1975) 49 Cal.App.3d 931, 123 Cal.Rptr. 563.)We think this question is more properly directed to the State Bar of California, which so far has not publicly addressed the issue. [11]

        59
        Conclusion
        60

        In summary, the facts alleged in appellant's cross-complaint state causes of action for battery and deceit. Her causes of action are not barred by Civil Code section 43.5, nor by the holding in Stephen K. v. Roni L., supra, 105 Cal.App.3d 640, 164 Cal.Rptr. 618, or the public policy considerations underlying that decision. Although the constitutional right to privacy normally shields sexual relations from judicial scrutiny, it does not do so where the right to privacy is used as a shield from liability at the expense of the other party. No California statute or decision bars appellant's causes of action, and decisions of other states support their viability by analogy.

        61
        Disposition
        62

        The judgment is reversed. The Municipal Court of the Napa-St. Helena Judicial District, County of Napa, State of California, is ordered to retransfer respondent's action to the Superior Court of the State of California, for the County of Napa, for further proceedings consistent with the views expressed herein.

        63

        FEINBERG, J., concurs.

        64

        SCOTT, Acting Presiding Justice.

        65

        I respectfully dissent. The cause of action appellant attempts to allege falls squarely within the prohibition of Civil Code section 43.5 which provides that “No cause of action arises for ... [¶] (c) Seduction of a person over the age of legal consent.” The Legislature in abolishing the seduction cause of action in 1939 labeled the anti-heart balm statute as “Wrongs not actionable.” Clearly the majority's assertion that “for every wrong there is a remedy” doesn't apply in the instant case.The majority attempts to characterize appellant's cause of action as a battery or an action for deceit. But in fact, appellant was allegedly seduced by respondent's false representation of infertility. The gravamen of appellant's cause of action is the seduction, that is the act of sexual intercourse induced by appellant's false representations. The injury sustained as a result of the alleged seduction was the ectopic pregnancy and damages that flowed therefrom. Clearly if there can be no cause of action for seduction, there can be no damages for the consequences thereof.

        66

        In rejecting respondent's contention that appellant's action is barred by Civil Code section 43.5, subdivision (c), the majority argues that this is not a seduction action because “appellant complains not because her virtue was violated ... but because the sexual act ... led to an ectopic pregnancy as a result of respondent's misrepresentation.” I find no support for the contention that the only damage from a seduction is loss of virtue. Surely a woman can suffer mentally and physically from an unwanted pregnancy whether it results in a live birth or is sooner terminated. All we are talking about is the damage that flows from the seduction.I agree with the court in Stephen K. v. Roni L. (1980) 105 Cal.App.3d 640 at pages 644 and 645, 164 Cal.Rptr. 618, where it states: “Despite [the] legalism [of plaintiff's claim], it is nothing more than asking the court to supervise the promises made between two consenting adults as to the circumstances of their private sexual conduct. To do so would encourage unwarranted governmental intrusion into matters affecting the individual's right of privacy.” Should we grant appellant here a cause of action, we cannot logically foreclose a cause of action to a woman who carries the child to a live birth, or one who has a miscarriage. The possibilities are limitless. The courts should stay out of the bedroom. I would affirm the judgment.

        67

        Hearing denied; RICHARDSON, J., dissenting.

        68

        Parallel Citations

        69

        145 Cal.App.3d 369

        70
        Footnotes
        71

        [1] In an ectopic pregnancy, the impregnated ovum develops outside the cavity of the uterus. (Stedman's Medical Dict. (3d unabridged lawyers' ed. 1972) p. 1013.) A tubal pregnancy, which occurred in the case before us, is an ectopic pregnancy where the fertilized ovum develops in the oviduct, also referred to as the Fallopian tube or tuba uterina. (Id., at pp. 903, 1014.) Respondent incorrectly refers to an ectopic pregnancy as a false pregnancy (pseudocyesis), a condition in which some of the signs and symptoms suggest pregnancy, although the woman is not in fact pregnant. (Id., at pp. 1013, 1033.)

        72

        [2] The court also granted respondent's motion to disqualify appellant's attorney.

        73

        [3] Civil Code section 43.5, enacted in 1939, provides: “No cause of action arises for:

        74

          “(a) Alienation of affection.

          “(b) Criminal conversation.

          “(c) Seduction of a person over the age of legal consent.

          “(d) Breach of promise of marriage.”

        75

        [4] In his answer, respondent denies not only the representations, but also the acts of intercourse. We, however, consider only the allegations in the cross-complaint.

        76

        Neither appellant nor respondent directed much attention to the sufficiency of the allegations in the first amended cross-complaint. Instead, each party emphasized public policy considerations and constitutional issues, which we discuss later.

        77

        [5] Appellant does not explain what happened to her second Fallopian tube, but this is a matter of proof at trial.

        78

        [6] Civil Code section 1710 provides: “A deceit, within the meaning of the last section, is either:

        79

          “1. The suggestion, as a fact, of that which is not true, by one who does not believe it to be true;

          “2. The assertion, as a fact, of that which is not true, by one who has no reasonable ground for believing it to be true;

          “3. The suppression of a fact, by one who is bound to disclose it or who gives information of other facts which are likely to mislead for want of communication of fact; or,

          “4. A promise, made without any intention of performing it.”

        80

        [7] The Legislature has retained in Penal Code section 268 criminal sanctions for “[e]very person who, under promise of marriage, seduces and has sexual intercourse with an unmarried female of previous chaste character....”

        81

        [8] The so-called “wrongful birth” cases were rejected by the Stephen K. court as precedent for Stephen's claim for two reasons: “First, in none of those cases did the plaintiffs seek so radical a change in the socially accepted ideas and views of sexual conduct, family relationship, parental obligations, and legal and moral responsibility for one's own conduct as does Stephen. Secondly, in those cases the facts and the relationship of the parties-litigants are different.” (Id., at p. 643, 164 Cal.Rptr. 618.) The actions have uniformly been instituted by parents against health professionals for negligence causing the birth of a child or the birth of an impaired child. For cases and discussion, see Turpin v. Sortini (1982) 31 Cal.3d 220, 225–228, 182 Cal.Rptr. 337, 643 P.2d 954; Stephen K. v. Roni L., supra, 105 Cal.App.3d 640, 643–644, 164 Cal.Rptr. 618.

        82

        [9] In response to Curlender v. Bio-Science Laboratories (1980) 106 Cal.App.3d 811, 165 Cal.Rptr. 477, which suggested “... possible parental liability [to the child] for deciding to conceive or failing to abort a potentially defective child, the Legislature enacted section 43.6 of the Civil Code, effective January 1, 1982. Section 43.6 relieves the parents of any liability in this situation ....” (Turpin v. Sortini, supra, 31 Cal.3d 220, 228, 182 Cal.Rptr. 337, 643 P.2d 954.) Although this section does not refer to intraparental tort actions based on misrepresentations, we think it is consistent with our conclusion that such actions are contrary to public policy.

        83

        [10] Both parties raise the issue of equal protection under the law. We do not view our holding as raising that issue. A man who suffers physical injury as a result of his female partner's intentional misrepresentation will have the same right to seek legal redress as does appellant in the case at bench.Furthermore, although the different treatment of men and women must be examined with strict scrutiny (Sail'er Inn, Inc. v. Kirby (1971) 5 Cal.3d 1, 15–20, 95 Cal.Rptr. 329, 485 P.2d 529), such treatment may be justified where men and women are not similarly situated (Schlesinger v. Ballard (1975) 419 U.S. 498, 508, 95 S.Ct. 572, 577–78, 42 L.Ed.2d 610.) Since it is obvious that men and women are not similarly situated with regard to the risk of pregnancy, any difference in treatment of them which may be perceived in our holding is justified.

        84

        [11] The Board of Governors of the Oregon State Bar in June 1982 issued Legal Ethics Opinion No. 475, advisory only, stating that it is unethical for an attorney to be sexually involved with the client while representing the client in a divorce action, which of course may differ in degree from a post-dissolution modification proceeding. The discussion accompanying the opinion is as follows: “DR 5–101(A) requires that a lawyer not accept employment if the exercise of his or her professional judgment on behalf of the client may be affected by his or her own personal interest, except with the consent of the client after full disclosure. DR 5–101(A) and 2–110(B)(2) and (C)(2) also imply a duty to withdraw from employment if circumstances arise whereby the attorney's personal interests may impair his or her ability to continue to exercise independent professional judgment on behalf of the client, unless the client consents to continued representation after full disclosure.

        85

          “These rules recognize that to fulfill the lawyer's responsibility of fully and adequately representing the client, it is essential that the lawyer be able to exercise independent professional judgment on behalf of the client. Where there is any question about the lawyer's ability to exercise an independent professional judgment, the client must be able to give an informed consent.

          “The lawyer representing one spouse in a dissolution proceeding cannot know with certainty whether a reconciliation is possible or is in the best interest of the client, or how the possibility of a reconciliation might be affected by an affair between the lawyer and the client. Nor can the lawyer know with certainty what reaction the client's spouse would have to learning that the lawyer is having an affair during the dissolution proceedings, or how such knowledge might affect the negotiation of property rights and, if children are involved, the right to custody. See In the Matter of Lehr and Lehr, 36 Or.App. 23, 583 P.2d 1157 (1978). The potential for prejudice to the client is immense.

          “Moreover, the client may be unable to give a voluntary and informed consent to continued representation. The attorney-client relationship is a fiduciary relationship, one of trust. The nature of that fiduciary relationship tends to make the client intellectually and, in many cases, emotionally dependent upon the attorney. If the client becomes involved in a love affair with the attorney, that dependency would only be increased. It would appear impossible for the lawyer to carry on such an affair with the client and maintain an independent judgment about whether the affair might harm the client's interests. See DR 7–101(A)(3). Even if the attorney were able to predict the consequences of the affair and explain them to the client, it is doubtful that the client's consent to the attorney's continued representation could ever be deemed truly informed and voluntary....”

  • 3 II. Assault and Battery: Intent and Autonomy

    In the absence of statutes that clearly delineate acceptable from unacceptable behavior – that’s the realm of criminal law, and still plenty complicated – tort law often requires a court to draw boundaries on the fly as individual cases come up. Here we look at a cluster of problems arising generally from situations in which society might say the wrongness of an act may be minimal or entirely lacking – yet a victim steps forward to earnestly claim that his or her wishes about bodily integrity have been disrespected.

    The rough and tumble of daily life – “the implied license of the playground” – allows some license for those who offend with physical contact, including against the especially sensitive. When does that license end, particularly if a plaintiff’s special sensitivities are known to a defendant? Are there any larger principles at work to help us resolve conflicts in this zone, or that at least capture the instincts that might find themselves in opposition?

    • 3.1 II.A. Latent Sensitivities and Reservations

      • 3.1.1 Wishnatsky v. Huey--"The Overly Sensitive Intruder"

        • 3.1.1.1 Wishnatsky v. Huey-- “The Overly-Sensitive Intruder”

          Should findings of offensive-contact-battery be based on a plaintiff’s level of sensitivity, or a more general standard?

          1
          Wishnatsky v. Huey
          2
          1998 ND App 8
          3
          North Dakota Court of Appeals
          4
          September 15, 1998
          5

          Civil No. 980067CA. Martin Wishnatsky, Plaintiff and Appellant v. David W. Huey, Defendant and Appellee. Appeal from the District Court for Cass County, East Central Judicial District, the Honorable Georgia Dawson, Judge. Per Curiam. Martin Wishnatsky, P.O. Box 413, Fargo, ND 58107, pro se; Andrew Moraghan, Assistant Attorney General, Attorney General’s Office, 900 East Boulevard Avenue, Bismarck, ND 58505-0041, for defendant and appellee.

          6

          PER CURIAM.[¶1] Martin Wishnatsky appealed a summary judgment dismissing his battery action against David W. Huey, and an order denying his motion for an altered judgment. We conclude, as a matter of law, that no battery occurred, and we affirm the judgment and the order.

          7

          [¶2] On January 10, 1996, Huey, an assistant attorney general, was engaged in a conversation with attorney Peter B. Crary in Crary’s office. Without knocking or announcing his entry, Wishnatsky, who performs paralegal work for Crary, attempted to enter the office. Huey pushed the door closed, thereby pushing Wishnatsky back into the hall. Wishnatsky reentered the office and Huey left.

          8

          [¶3] Wishnatsky brought an action against Huey, seeking damages for battery. Huey moved for summary judgment of dismissal. The trial court granted Huey’s motion and a judgment of dismissal was entered. Wishnatsky moved to alter the judgment. The trial court denied Wishnatsky’s motion.

          9

          [¶4] Wishnatsky appealed, contending the evidence he submitted in response to Huey’s motion for summary judgment satisfies the elements of a battery claim and the trial court erred in granting Huey’s motion. Wishnatsky also contends Huey is not entitled to prosecutorial or statutory immunity.

          10

          [¶5] Summary judgment is a procedural device for the prompt and expeditious disposition of a controversy without trial if either party is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving factual disputes would not alter the result. Perry Center, Inc. v. Heitkamp, 1998 ND 78, ¶ 12, 576 N.W.2d 505. “In considering a motion for summary judgment, a court must view the evidence in the light most favorable to the party opposing the motion, who must be given the benefit of all favorable inferences which reasonably can be drawn from the evidence.” Mougey Farms v. Kaspari, 1998 ND 118, ¶ 12, 579 N.W.2d 583. “Disputes of fact become questions of law if reasonable persons can draw only one conclusion from the evidence.” Id. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the non-moving party to determine if the trial court properly granted summary judgment as a matter of law. Tuhy v. Schlabsz, 1998 ND 31, ¶ 5, 574 N.W.2d 823. On a defendant’s motion for summary judgment, the question for the court is “whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiff’s position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).

          11

          [¶6] “In its original conception [battery] meant the inflicton of physical injury.” VIII Sir William Holdsworth, A History of English Law 422 (2d Impression 1973). By the Eighteenth Century, the requirement of an actual physical injury had been eliminated:

          12
            At Nisi Prius, upon evidence in trespass for assault and battery, Holt, C. J. declared, 1. That the least touching of another in anger is a battery. 2. If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it is no battery. 3. If any of them use violence against the other, to force his way in a rude inordinate manner, it is a battery; or any struggle about the passage, to that degree as may do hurt, is a battery. Vid.Bro.Tresp. 236. 7 E. 4, 26. 22 Ass. 60. 3 H. 4, 9.
          14
            The least touching of another’s person willfully, or in anger, is a battery; for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it: every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner. 3 William Blackstone, Commentaries *120. On the other hand, “in a crowded world, a certain amount of personal contact is inevitable, and must be accepted.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 9, at 42 (5th ed. 1984).
          15

          [¶7] The American Law Institute has balanced the interest in unwanted contacts and the inevitable contacts in a crowded world in Restatement (Second) of Torts §§ 18, 19(1965):

          16
            18. Battery: Offensive Contact

            (1) An actor is subject to liability to another for battery if

            (a) he 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) an offensive contact with the person of the other directly or indirectly results.

            (2) An act which is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for a mere offensive contact with the other’s person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

            19. What Constitutes Offensive Contact
            A bodily contact is offensive if it offends a reasonable sense of personal dignity.

          18
            In order that a contact be offensive to a reasonable sense of personal dignity, it must be one which would offend the ordinary person and as such one not unduly sensitive as to his personal dignity. It must, therefore, be a contact which is unwarranted by the social usages prevalent at the time and place at which it is inflicted.
          19

          [¶8] Huey moved for summary judgment of dismissal, because, among other things, “as a matter of law, a battery did not occur on January 10, 1996.” Huey supported the motion with his affidavit stating in part:

          20
            8. That Attorney Crary and I had settled into a serious discussion about the case and had established a good rapport when the door to his office suddenly swung open without a knock. An unidentified individual carrying some papers then strode in unannounced. I had not been told that anyone would be entering Attorney Crary’s office during the private meeting. . . . I subsequently learned that the individual’s name is Martin Wishnatsky.
          22

          [¶9] Wishnatsky responded to Huey’s motion for summary judgment with an affidavit of Crary and with his own affidavit stating in part:

          23
            1. I am a born-again Christian and cultivate holiness in my life. [A]s a result I am very sensitive to evil spirits and am greatly disturbed by the demonic. However, in Christ there is victory.

            2. On January 9, 1996, Mr. David Huey of the North Dakota Attorney General’s office, visited the ministry where I was working at 16 Broadway in Fargo, North Dakota with an ex parte court order.

            3. The following morning I entered the office of Peter Crary, an attorney for whom I do paralegal work, to give him certain papers that had been requested. Mr. Crary was speaking with Mr. David Huey at the time. As I began to enter the office Mr Huey threw his body weight against the door and forced me out into the hall. I had not said a word to him. At the same time, he snarled: “You get out of here.” This was very shocking and frightening to me. In all the time I have been working as an aide to Mr. Crary, I have never been physically assaulted or spoken to in a harsh and brutal manner. My blood pressure began to rise, my heart beat accelerated and I felt waves of fear in the pit of my stomach. My hands began to shake and my body to tremble. Composing myself, I reentered the office, whereupon Mr. Huey began a half-demented tirade against me and stormed out into the hall. I looked at Mr. Crary in wonder.
          24

          [¶10] We certainly agree with the Supreme Cout’s determination that when Wishnatsky attempted to enter the room in which Huey was conversing with Crary, “Huey apparently reacted in a rude and abrupt manner in attempting to exclude Wishnatsky from that conversation.” Wishnatsky v. Huey, 1997 ND 35, ¶ 15, 560 N.W.2d 878. As a matter of law, however, Huey’s “rude and abrupt” conduct did not rise to thelevel of battery.

          25

          [¶11] The evidence presented to the trial court demonstrates Wishnatsky is “unduly sensitive as to his personal dignity.” Restatement (Second) of Torts § 19 cmt. a (1965). Without knocking or otherwise announcing his intentions, Wishnatsky opened the door to the office in which Huey and Crary were having a private conversation and attempted to enter. Huey closed the door opened by Wishnatsky, thereby stopping Wishnatsky’s forward progress and pushing him back into the hall. The bodily contact was momentary, indirect, and incidental. Viewing the evidence in the light most favorable to Wishnatsky, and giving him the benefit of all favorable inferences which can reasonably be drawn from the evidence, we conclude Huey’s conduct in response to Wishnatsky’s intrusion into his private conversation with Crary, while “rude and abrupt,” would not “be offensive to a reasonable sense of personal dignity.” In short, an “ordinary person . . . not unduly sensitive as to his personal dignity” intruding upon a private conversation in Wishnatsky’s manner would not have been offended by Huey’s response to the intrusion. We conclude that Huey’s conduct did not constitute an offensive-contact-battery, as a matter of law, and the trial court did not err in granting Huey’s motion for summary judgment dismissing Wishnatsky’s action.

          26

          [¶12] Because we have concluded there was no battery as a matter of law, we need not address the immunity issues Wishnatsky has raised. We need not consider questions, the answers to which are unnecessary to the determination of the case. See, e.g., Kaler v. Kraemer, 1998 ND 56, ¶ 10, 574 N.W.2d 588; Hospital Servs., Inc. v. Brooks, 229 N.W.2d 69, 71 (N.D. 1975).

          27

          [¶13] Affirmed.

        • 3.1.1.2 Wishnatsky's (Plaintiff's) Amended Complaint

          1
          STATE OF NORTH DAKOTA COUNTY OF CASS


          Martin Wishnatsky,
          Plaintiff,
          vs.
          David W. Huey,
          Defendant.


          IN DISTRICT COURT EAST CENTRAL JUDICIAL DISTRICT


          Civil No.

          2
          AMENDED COMPLAINT

          5

          Plaintiff for his complaint, states and alleges as follows:

          6
          Parties

          8

          1. He is a resident of Cass County, North Dakota.
          2. Defendant David W. Huey is an assistant attorney general for the state of North Dakota and a resident of Bismarck. Defendant is being sued in both his individual and official capacities.Jurisdiction
          3. This action arises under the common law of torts.



          11
          Events

          13

          4. Plaintiff has his office on the third floor of 16 Broadway in Fargo and provides paralegal services to attorney Peter Crary whose office is on the same floor. It is very common and a matter of routine for the plaintiff to be in and out of Mr. Crary's office during the day.
          5. On Wednesday morning, January 10th, 1996, at approximately 10:00 a.m. during normal business hours the plaintiff entered Mr. Crary's office to give him certain papers that had been requested. Mr. Crary was speaking with defendant David Huey at the time. As the plaintiff began to enter the office, Mr. Huey snarled: "You get out of here." Simultaneously the defendant threw his body weight against the door to prevent the plaintiff from entering Mr. Crary's office. The pressure of the door being forced against his body by Mr. Huey overcame plaintiff’s forward movement and he was physically forced backwards and out into the hall.
          6. The plaintiff had not said a word to Mr. Huey to provoke this attack. He had done nothing more than to open the door and to begin to walk into Mr. Crary's office, something he routinely did many times every work day.
          7. The plaintiff was shocked and frightened by Mr. Huey's physical attack upon him. In all the time he had been providing paralegal services to Mr. Crary, he had never been physically assaulted or spoken to in a harsh and brutal manner. Plaintiff’s blood pressure began to rise. His heartbeat accelerated and he experienced waves of fear in the pit of his stomach. Plaintiff’s hands also began to shake and his body trembled.
          8. Composing himself, the plaintiff reentered Mr. Crary's office to deliver the papers to him and made a brief and respectful statement to Mr. Huey that as a public servant he had an obligation to treat the public with respect and courtesy. Mr. Huey then went into a tirade, stating that he would no longer discuss anything with Mr. Crary, that his time was too valuable, etc. He then stormed out into the hall. The plaintiff then gave Mr. Crary the papers he had originally entered his office to provide and left.
          9. After this experience it took the plaintiff a considerable amount of time to settle down and get into his work routine. He was emotionally upset and frightened by the abusive behavior of the state's representative.



          16
          Cause of Action for Battery

          18

          10. By the actions described in paragraphs 5-8, the defendant intentionally and in anger engaged in violent, offensive, insulting, uninvited and unwanted physical contact with the plaintiff.
          11. This unpermitted contact, as described above, was reasonably offensive to the plaintiffs sense of personal dignity, was unwarranted by the social usages prevalent in an office environment and in the legal community, and was contrary to all good manners.
          12. This offensive contact constituted a battery upon the person of the plaintiff.
          13. Defendant's actions constitute malfeasance in that the battery was a wholly wrongful and unlawful act.



          21
          Damages

          23

          14. Plaintiff is entitled to nominal damages for the battery itself and compensatory damages for the emotional upset, fear and distress caused by the defendants' actions.
          15. Plaintiff requests a trial by jury and such other and further relief as the court may deem suitable.



          27
          Dated this 2nd day of August, 1996.

          Martin Wishnatsky
        • 3.1.1.3 Letters Between Litigants

          1

          Mr. Andrew Moraghan
          Assistant Attorney General
          900 East Boulevard
          Bismarck ND 58505



          4

          RE: Wishnatsky v. Huey
          Civil No. 96-2297



          7

          Dear Mr. Moraghan:

          Enclosed is a draft motion to compel in the above matter. In the interest of allowing the defendant to reconsider his discovery responses, the motion is being sent to you for consideration.

          I will allow you a week or two to consider the motion before filing it. If you need more time or decide voluntarily to supplement the responses served on January 29, 1997, please let me know.

          Sincerely,
          Martin Wishnatsky





          13

          OFFICE OF ATTORNEY GENERAL

          STATE OF NORTH DAKOTA
          May 23, 1997
          15

          Mr. Martin Wishnatsky
          P.O. Box 413 Fargo, ND 58107

          16

          RE: Wishnatsky v. Huey Civil
          No. 96-2297

          17

          Dear Mr. Wishnatsky:

          Thank you for your letter dated May 13, 1997.

          We believe that there were valid grounds for the objections that we interposed to your interrogatories. Therefore, we will not be amending our answers.

          We do not believe that your proposed motion to compel discovery would be substantially justified. Furthermore, we believe that the interrogatories to which we objected were designed to harass the defendant. Therefore, if you elect to file your motion, it is likely that we will seek reasonable expenses, including attorney's fees, incurred in opposing the motion.

          Please feel free to contact me if you have any questions. Thank you.

          Sincerely,

          Andrew Moraghan

          18

          Assistant Attorney
          General Office of Attorney General
          900 East Boulevard Avenue
          Bismarck, ND 58505-0041
          Telephone (701) 328-3640
          Facsimile (701) 328-4300

          19

          jjt
          cc: Dave Huey

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