McCracken v. Sloan

North Carolina Court of Appeals · Torts

TortsAssaultBatteryassaultbatteryconsentoffensive contactapprehension

Facts

The record consisted of a stipulation describing what the plaintiff's evidence would tend to show. The defendant smoked cigars in his own office on two occasions while on notice that cigar smoke was personally offensive to the plaintiff and, in the plaintiff's view, injurious to his health. The plaintiff experienced some mental distress from inhaling the smoke. However, the doctors' statements only said the plaintiff was allergic to tobacco smoke and did not say the cigar smoking on those dates could have caused him physical illness.

Issue

Whether, on the stipulated evidence most favorable to the plaintiff, there was enough evidence to submit to a jury a claim for assault and battery based on the defendant's smoking cigars in his own office when he knew the smoke was offensive to the plaintiff. Also, whether the superior court properly used the stipulation-and-dismissal procedure to enter an appealable judgment.

Rule

In North Carolina, assault protects against apprehension of a harmful or offensive contact, and battery protects against intentional and unpermitted contact with the plaintiff's person. A battery may be accomplished indirectly if the defendant sets a force in motion that ultimately produces the contact, but consent is assumed to ordinary contacts customary and reasonably necessary to common social intercourse. Where the only showing is exposure to cigar smoke causing mental distress, with no competent evidence of resulting physical illness, the evidence is insufficient to support assault or battery.

🔒

See the holding & full analysis

Create a free KwikCourt account to unlock the rest of this brief — and practice the case.

The court's holding and reasoning
Doctrine tests, pitfalls & exam hypotheticals
10 practice questions + 4 AI-graded essays on this case

Free sample · practice this case

Test yourself

One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Raleigh, Lena Ortiz meets with Victor Boone in Victor's private office at Piedmont Ledger Services, a fictional bookkeeping firm. Victor lights a strongly scented cigar after Lena has already told him that smoke makes her anxious and that she finds it deeply offensive, but Lena has no medical proof that the smoke caused any physical illness.

If Lena sues Victor for battery, what is the strongest answer under the governing rule?

Explanation. Battery protects against intentional and unpermitted contact, and contact may be indirect. But consent is assumed to ordinary contacts customary and reasonably necessary to common social intercourse. The majority treated smelling cigar smoke from a person smoking in his own office as ordinarily such an innocuous and generally permitted contact. Knowledge that the smoke is personally offensive to the plaintiff does not by itself make the contact actionable, and mental distress alone without competent evidence of physical illness is insufficient. (Derived from McCracken v. Sloan (n.d.).)