258 So.2d 815 (Fla. 1972), 40696, Spivey v. Battaglia

Docket Nº:40696.
Citation:258 So.2d 815
Party Name:Betty Joyce SPIVEY and Dallas H. Spivey, her husband, Petitioners, v. Phillip BATTAGLIA, Respondent.
Case Date:January 26, 1972
Court:Supreme Court of Florida

Page 815

258 So.2d 815 (Fla. 1972)

Betty Joyce SPIVEY and Dallas H. Spivey, her husband, Petitioners,


Phillip BATTAGLIA, Respondent.

No. 40696.

Supreme Court of Florida.

January 26, 1972

Rehearing Denied March 29, 1972.

Page 816

John M. Cain, of Gurney, Gurney & Handley, Orlando, for petitioners.

Hubert I. Sears, Jr., of Maguire, Voorhis & Wells, Orlando, for respondent.

DEKLE, Justice.

This cause is before us on petition for writ of certiorari to review a decision of the District Court of Appeal, Fourth District, Spivey v. Battaglia, Fla.App., 242 So.2d 477 (1971). It will be seen below that there is a misapplication and therefore conflict with McDonald v. Ford, Fla.App., 223 So.2d 553 (2d DCA Fla.1969), vesting jurisdiction here under Fla.Const. art. V, § 4, F.S.A. 1 /p> Petitioner (plaintiff in the trial court) and respondent (defendant) were employees of Battaglia Fruit Co. on January 21, 1965. During the lunch hour several employees of Battaglia Fruit Co., including petitioner and respondent, were seated on a work table in the plant of the company. Respondent, in an effort to tease petitioner, whom he knew to be shy, intentionally put his arm around petitioner and pulled her head toward him. Immediately after this 'friendly unsolicited hug,' petitioner suffered a sharp pain in the back of her neck and ear, and sharp pains into the base of her skull. As a result, petitioner was paralyzed on the left side of her face and mouth.

An action was commenced in the Circuit Court of Orange County, Florida, wherein the petitioners, Mr. and Mrs. Spivey, brought suit against respondent for, (1) negligence, and (2) assault and battery. Respondent, Mr. Battaglia, filed his answer raising as a defense the claim that his 'friendly unsolicited hug' was an assault and battery as a matter of law and was barred by the running of the two-year statute of limitations on assault and battery. Respondent's motion for summary judgment was granted by the trial court on this basis. The district court affirmed on the authority of McDonald v. Ford, Supra.

The question presented for our determination is whether petitioner's action could be maintained on the negligence count, or whether respondent's conduct amounted to an assault and battery as a matter of law, which would bar the suit under the two-year statute (which had run).

In McDonald the incident complained of...

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