White v. University of Idaho

• Decision Date: 03 February 1989
• Docket Number: No. 17292,17292
• Citation: 115 Idaho 564,768 P.2d 827
• Parties: , 52 Ed. Law Rep. 308 Kenneth F. WHITE and Carol S. White, husband and wife, Plaintiffs-Appellants, v. The UNIVERSITY OF IDAHO and Richard Neher, Defendants-Respondents.
• Court: Idaho Court of Appeals

Page 827

768 P.2d 827

115 Idaho 564, 52 Ed. Law Rep. 308

Kenneth F. WHITE and Carol S. White, husband and wife, Plaintiffs-Appellants, v. The UNIVERSITY OF IDAHO and Richard Neher, Defendants-Respondents.

No. 17292.

Court of Appeals of Idaho.

Feb. 3, 1989.

L. Kim McDonald, Nampa and Harry M. Philo (argued), Detroit, Mich., for plaintiffs-appellants.

Richard Stubbs of Quane, Smith, Howard & Hull, Boise, for defendant-respondent, University of Idaho.

Bobbie K. Dominick of Elam, Burke & Boyd, Boise, for defendant-respondent, Richard Neher.

PER CURIAM.

Carol and Kenneth White brought this action on a tort claim against the University of Idaho and Professor Richard Neher, alleging that the professor had caused injuries to Carol White. The district court granted the University's motion for summary judgment holding that, under the Idaho Tort Claims Act, a governmental entity has no liability "for any claim which ... [a]rises out of ... battery" committed by an employee. I.C. § 6-904(3). ¹ The Whites' appeal presents a single issue of law: whether Professor Neher's intentional and unpermitted touching of Mrs. White constituted a battery. We agree with the district court that it did and we affirm.

Summary judgment is an appropriate way to resolve this case. There are no genuine issues of material fact; the case simply calls for the application of law to undisputed facts. I.R.C.P. 56(c). In such cases we exercise free review.

Professor Neher and Mrs. White had long been acquainted because of their mutual interest in music, specifically, the piano. Professor Neher was a social guest at the Whites' home when the incident here occurred. One morning Mrs. White was seated at a counter writing a resume for inclusion in the University's music department newsletter. Unanticipated by Mrs. White, Professor Neher walked up behind her and touched her back with both of his hands in a movement later described as one a pianist would make in striking and lifting the fingers from a keyboard. The resulting contact generated unexpectedly harmful injuries, according to the Whites. For purposes of summary judgment, we deem these allegations to be true. Mrs. White suffered thoracic outlet syndrome on the right side of her body, requiring the removal of the first rib on the right side. She also experienced scarring of the brachial plexus nerve which necessitated the severing of the scalenus anterior muscles.

Both Professor Neher and Mrs. White gave deposition testimony which is summarized as follows. Professor Neher stated he intentionally touched Mrs. White's back, but his purpose was to demonstrate the sensation of this particular movement by a pianist, not to cause any harm. Professor Neher explained that he has occasionally used this contact method in teaching his piano students. Mrs. White said Professor Neher's act took her by surprise and was non-consensual. Mrs. White further remarked that she would not have consented to such contact and that she found it offensive. The Whites argue that because Professor Neher did not intend to cause harm, injury...