Muniz v. White
| Decision Date | 03 September 1998 |
| Docket Number | No. 97CA0777,97CA0777 |
| Citation | 979 P.2d 23 |
| Parties | 98 CJ C.A.R. 4629 Sherry Lynn MUNIZ, f/k/a Sherry Lynn Hutcheson, Plaintiff-Appellant, v. Barbara WHITE, as Personal Representative of the Estate of Helen Everly, Deceased, Defendant-Appellee. . II |
| Court | Colorado Court of Appeals |
Nick Wimmershoff, Longmont, for Plaintiff-Appellant.
Patterson & Nuss, P.C., Franklin D. Patterson, Englewood, for Defendant-Appellee.
Opinion by Judge TURSI. **
Plaintiff, Sherry Lynn Muniz, appeals from a judgment entered on a jury verdict in favor of defendant, Marlene K. Rose, acting as personal representative of the Estate of Helen Everly, deceased, on plaintiff's claims against Everly. We reverse and remand for a new trial.
In 1993, plaintiff was an employee and shift supervisor at an assisted living center in which Everly was a resident. The center is not a party to this action. Everly, an elderly, incontinent woman, suffered from senile dementia of the Alzheimer type. Plaintiff alleged that, while caring for Everly one evening and attempting to change her soaked diapers, Everly struck plaintiff in the jaw, spat and swore at her, and told her to get out of her room. Plaintiff also alleged that Everly then attempted to hit her again but that she was able to restrain her. Plaintiff claimed that she sustained injuries from the blow to her jaw, including a mild closed brain injury, temporomandibular jaw disease, and damage to her hearing.
Based on this incident, plaintiff filed a complaint against Everly and Barbara White and Timothy White, Everly's granddaughter and her husband. The complaint included claims against Everly for assault and battery, and a negligence claim against the Whites. The negligence claim against the Whites was dismissed prior to trial. Various affirmative defenses were not pursued.
After the case was at issue, a guardian ad litem was appointed for Everly pursuant to her counsel's request. In his report, the guardian ad litem concluded that Everly suffered from senile dementia, Alzheimer type, in accordance with the medical reports.
During the pendency of the litigation, Everly died. Her estate was substituted as party defendant.
Plaintiff's claims against Everly for assault and battery were submitted to the jury, resulting in a verdict in favor of defendant.
Plaintiff contends that, when instructing the jury on the torts of assault and battery, the trial court erred by improperly instructing the jury on intent. We agree, and conclude that the error was prejudicial warranting reversal.
Initially, we note that no issue has been raised concerning plaintiff's status as an employee of the facility providing Everly's care. Hence, for purposes of this appeal, plaintiff's status is no different from that of a member of the general public.
The jury was given the following instruction on intent:
A person intends to make a contact with another person if she does an act for the purpose of bringing about such a contact, whether or not she also intends that the contact be harmful or offensive.
The fact that a person may suffer from Dementia, Alzheimer type, does not prevent a finding that she acted intentionally. You may find that she acted intentionally if she intended to do what she did, even though her reasons and motives were entirely irrational. However, she must have appreciated the offensiveness of her conduct. (emphasis supplied)
This definition of intent was separately given and intent was specified as an element of assault and battery.
Plaintiff objected to the instruction, arguing that it was improper because inclusion of the last sentence, emphasized above, reflects a misstatement of the law. Further, plaintiff maintains that the trial court erroneously relied on Horton v. Reaves, 186 Colo. 149, 526 P.2d 304 (1974) as a basis for this instruction.
In Horton, the supreme court held that, in order to hold an infant liable for his intentional tort, the infant must appreciate the offensiveness or wrongfulness of the act. By analogy, the trial court determined that Everly's conduct was comparable to that of a child, and concluded that the instruction on intent should include a requirement that, to have committed an assault, Everly must have appreciated the offensiveness or wrongfulness of her act.
We recognize the logic in the trial court's ruling. We nevertheless conclude that the Horton holding should be limited to its facts and not made applicable to adult defendants who suffer from a deficient mental capacity.
The courts in most states have concluded that adults with mental deficiencies should be held liable for their intentional acts, including assault and battery, even if they are unable to appreciate that their conduct is offensive or harmful. The rationale is that, where one of two innocent persons must suffer a loss, it should be borne by the one who occasioned it. See generally W. Keeton,...
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White v. Muniz
...Barbara White, as personal representative of the estate of Helen Everly, appeals the decision of the court of appeals in Muniz v. White, 979 P.2d 23, 25 (Colo.App.1998), which determined that a mentally incapacitated adult should be held liable for her intentional tort even if she was unabl......