Wallace v. Rosen

Court of Appeals of Indiana · 2001 · Torts

Tortsbatteryjury instructionsincurred riskcontributory negligenceintentional tortcivil batteryrude insolent or angry touching

Facts

During an unannounced fire drill at Northwest High School, Wallace was on a stairway near the top landing speaking with students, and Rosen saw three or four people blocking the students' exit. Because Wallace had her back to Rosen and could not hear over the alarm, Rosen touched Wallace on the back and told her to move because it was a fire drill. Wallace testified Rosen pushed her down the stairs, while Rosen testified Wallace did not fall and descended unassisted. Wallace tendered a battery instruction, which the trial court refused, and the court gave defendants' incurred-risk instruction over Wallace's objection.

Issue

Did the trial court abuse its discretion by refusing Wallace's battery instruction and by instructing the jury on incurred risk? More specifically, was there evidence supporting a battery instruction, and if the incurred-risk instruction was erroneous, did it prejudice Wallace's substantial rights?

Rule

A tendered jury instruction is properly refused if it is unsupported by the evidence or would mislead or confuse the jury. Civil battery requires a knowing or intentional touching in a rude, insolent, or angry manner; mere knowledge of risk, negligence, or recklessness short of intent is not enough, and ordinary, reasonably necessary contact in a crowded setting is generally not battery. In negligence actions against governmental defendants, contributory negligence and incurred risk are available defenses, and reversal for instructional error is warranted only if the instructions as a whole misstate the law or likely affected the result.

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

At a crowded emergency shelter drill in Toledo, teacher Dana Mercer saw parent Olivia Kent standing in a doorway while children were trying to pass through. Because the siren was loud, Dana placed two fingers on Olivia's upper arm and pivoted her a few inches toward the wall so the children could keep moving.

In Olivia's negligence suit against the public school district and Dana, Olivia requests a jury instruction on civil battery. Should the court give it?

Explanation. Civil battery requires a knowing or intentional touching in a rude, insolent, or angry manner. The majority opinion emphasized that in a crowded world, ordinary contact reasonably necessary to common intercourse—such as a tap on the shoulder to attract attention—does not support a battery instruction. Here, the contact occurred during an emergency drill to clear a passage, so the evidence would not support an inference of rude, insolent, or angry touching.