Baska v. Scherzer, 94,879.

• Decision Date: 27 April 2007
• Docket Number: No. 94,879.,94,879.
• Citation: 156 P.3d 617
• Parties: Celesta C. BASKA, Appellant, v. Harry SCHERZER, Jr., and Calvin Madrigal, Appellees.
• Court: Kansas Supreme Court

156 P.3d 617

Celesta C. BASKA, Appellant, v. Harry SCHERZER, Jr., and Calvin Madrigal, Appellees.

No. 94,879.

Supreme Court of Kansas.

April 27, 2007.

James M. Sheeley, of Kansas City, Kansas, argued the cause and was on the brief for appellant.

James H. Ensz, of Ensz & Jester, P.C., of Kansas City, Missouri, argued the cause, and Matthew J. Gist, of the same firm, was with him on the brief for appellee Harry Scherzer.

Jeffrey S. Nichols, of Wallace, Saunders, Austin, Brown & Enochs, Chtd., of Overland Park, argued the cause, and Alex B. Judd, of the same firm, was with him on the briefs for appellee Calvin Madrigal.

The opinion of the court was delivered by DAVIS, J.:

Celesta Baska brought an action for personal injuries sustained when she attempted to stop a fight by stepping between the defendants, Harry Scherzer, Jr., and Calvin Madrigal. Her action was brought after the expiration of a year from her injury but within 2 years from the date of her injury. After some discovery, the trial court granted the defendants' motions for summary judgment and dismissed Baska's action based upon its conclusion that her action was governed by the 1-year statute of limitations for assault and battery, K.S.A. 60-514(b). The Court of Appeals reversed, holding that Baska's action sounded in negligence, and thus was subject to the 2-year statute of limitations under K.S.A. 60-513(a)(4), primarily because she was unintentionally struck by defendants. We granted the defendants' petitions for review, and now we reverse the decision of the Court of Appeals and affirm the district court.

Facts

Baska had given her daughter Ashley, a high school senior, permission to organize a "scavenger hunt" with some friends. The scavenger hunt began at the Baskas' house around 8:30 p.m. and was to end with the participants returning to the house by midnight. When people returned, a number of them remained at the Baskas' home for a "party."

Scherzer and Madrigal were both at the party. Madrigal had participated in the scavenger hunt; Scherzer remained at the house while the hunt ensued, playing cards with Baska. He then went outside as people began to return to the house.

Around midnight, an altercation broke out between Scherzer and Madrigal. Madrigal approached Scherzer from behind, and the two boys began to push each other and throw punches at one another. Upon being informed of the fight by one of her daughter's friends, Baska yelled at the boys to stop in order to break up the fight. When they continued to fight, Baska placed herself between the boys and was punched in the face, losing several teeth and receiving injuries to her neck and jaw. Baska is certain that Scherzer hit her in the face; she also believes that Madrigal punched her in the back of the head.

On April 8, 2004, just short of 2 years after the incident, Baska filed suit against Madrigal and Scherzer, alleging that she was injured by the defendants' negligence. In her petition she alleged:

"5. That the defendants, in their excitement and totally unintentionally, struck the plaintiff with powerful blows intended for the other participant in the fight.

"6. That the sole and proximate cause of plaintiff's injuries was the negligence and carelessness of the defendants."

Both defendants filed motions to dismiss based on the statute of limitations, alleging that the suit was barred by the 1-year statute of limitations for assault and battery, K.S.A. 60-514(b). The district court originally granted the motions; however, the court later granted Baska's motion to reconsider and allowed the parties to pursue additional discovery.

Depositions were taken of Baska, Madrigal, and Scherzer. Both Madrigal and Scherzer testified in their depositions that they did not intend to strike or injure Baska in any way. Instead, each defendant testified that it was his intention in throwing the punches to strike and injure the other defendant. In her deposition, Baska's counsel asked her whether she "would anticipate that the intended recipient of [Scherzer's] blow was Mr. Madrigal and not [herself]." Baska answered, "Yes, sir."

After depositions, Madrigal and Scherzer filed motions for summary judgment again based on the 1-year statute of limitations for assault and battery. In its decision after conducting a hearing, the court concluded that the doctrine of transferred intent applied and that Baska's cause of action was an action for assault and battery, not negligence. The court explained:

"Well, the plaintiff's theory, as I understand it, is that in trying to break up this altercation that she was injured by the negligent acts of the two participants who were defending themselves, each of them claiming self defense, and in a negligent manner.

"The depositions of both of the combatants having been taken now, it appears to me that they were striking at each other. Those are intentional acts. The doctrine of transferred intent has been the law in Kansas probably since this place became a state because I think it came straight out of the common law, and it's certainly been the law since I was in law school 30 years ago.

"I don't see anything in [the plaintiff's] citations ... that the State of Kansas has gone away from that. So I think that in each of these two cases, each—as to each defendant, motion for summary judgment must be granted on the basis that these are intentional acts and the doctrine transferred intent would apply, and they should have been filed within the one year of statute of limitations."

Court of Appeals

The Court of Appeals reversed in an unpublished opinion, Baska v. Scherzer, Case No. 94,879, 2006 WL 2265106, filed August 4, 2006. Although the court did not dispute the district court's statement of the facts, it disagreed with the district court's conclusion. The Court of Appeals noted that "[t]he key distinction between assault and battery on one hand, and negligence on the other, is that assault and battery are both intentional torts and negligence is unintentional. [Citation omitted.]" Slip op. at 5. The court ultimately held that the plaintiff's action in this case sounded in negligence, because the plaintiff was "unintentionally struck" by the defendants. Slip op. at 14.

The Court of Appeals reviewed a number of Kansas decisions as well as a number of cases from other jurisdictions concluding that "the law on this issue is unclear" Slip op. at 6-13 (citing Harris v. Richards, 254 Kan. 549, 867 P.2d 325 [1994]; Hackenberger v. Travelers Mutual Cas. Co., 144 Kan. 607, 62 P.2d 545 [1936]; Byrum v. Edwards, 66 Kan. 96, 71 P. 250 [1903]; Laurent v. Bernier, 1 Kan. *428 [1863]; and Vetter v. Morgan, 22 Kan.App.2d 1, 913 P.2d 1200, rev. denied 257 Kan. 1096 [1995]). The court noted that "Laurent, Byrum, and Hackenberger tend to suggest that Baska's only cause of action is assault and battery because Madrigal and Scherzer acted intentionally." Slip op. at 12. Nevertheless, it noted that "[a]lthough these cases have not been overruled, they appear inconsistent with Vetter and the dicta in Harris." Slip op. at 12. In light of these inconsistencies, the court explained its synthesis of these decisions as follows:

"The law on this issue appears to have shifted from the earlier position that an intentional act of violence, which has an unintentional effect on a third party, must be viewed as assault and battery for purposes of application of the statute of limitations . . . .

. . . .

"If we can take guidance from these cases, it appears that a specific intent to perform a certain act, such as shooting someone, even if there is a mistaken identity, will generally lead to a finding that the 1-year limitation on assault and battery is applied.

"However, threatening actions which lead to unanticipated results may well be viewed as negligence as long as the plaintiff is not purposefully and intentionally struck by the defendant.

"We have a blending in this case, where Baska was probably unintentionally struck during a fight between Scherzer and Madrigal. Although the law may not be clear, we find the rationale in Vetter should be used. We, therefore, reverse the district court's finding that the 1-year statute of limitations applied and remand for further proceedings." Slip op. at 13-15.

Both defendants, Madrigal and Scherzer, filed petitions for review, claiming that the Court of Appeals misstated the applicable law. In particular, the defendants argue that the Court of Appeals, without any discussion thereof, eviscerated the doctrine of transferred intent by holding a negligence tort action lies for an assault and battery when the injured party is not the intended victim.

The sole issue we must resolve is whether plaintiff's action is governed by the 1-year statute of limitations for assault and battery under K.S.A. 60-514(b) or by the 2-year statute of limitations for negligence under K.S.A. 60-513(a)(4). The facts are not in dispute, and the answer to this question is one of law.

Standard of Review

Baska appeals from the district court's grant of summary judgment on the basis that she filed her claim after the 1-year statute of limitations for assault and battery had run.

"`"Summary judgment is appropriate when the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. The trial court is required to resolve all facts and inferences which may reasonably be drawn from the evidence in favor of the party against whom the ruling is sought. When opposing a motion for summary judgment, an adverse party must come forward with evidence to establish a dispute as to a material fact. In order to preclude summary judgment, the facts subject to the dispute must be material to the conclusive issues in the case. On appeal, we apply the same rules and where we find reasonable minds...