White v. University of Idaho

• Citation: 797 P.2d 108,118 Idaho 400
• Decision Date: 07 August 1990
• Docket Number: No. 18046,18046
• Parties: , 62 Ed. Law Rep. 1169 Kenneth F. WHITE and Carol S. White, husband and wife, Plaintiff-appellants, v. The UNIVERSITY OF IDAHO and Richard Neher, Defendant-respondents.
• Court: United States State Supreme Court of Idaho

Page 108

797 P.2d 108

118 Idaho 400, 62 Ed. Law Rep. 1169

Kenneth F. WHITE and Carol S. White, husband and wife, Plaintiff-appellants, v. The UNIVERSITY OF IDAHO and Richard Neher, Defendant-respondents.

No. 18046.

Supreme Court of Idaho.

Aug. 7, 1990.

L. Kim McDonald, Nampa, and Harry M. Philo, Detroit, Mich., argued, for appellants.

Quane, Smith, Howard & Hull, Boise, for respondent University of Idaho. Terry L. Spencer argued.

Elam, Burke & Boyd, Boise, for respondent Neher. Robert Tyler argued.

BAKES, Chief Justice.

This is a review of a decision of the Idaho Court of Appeals. The Whites appealed the trial court's grant of partial summary judgment which dismissed their complaint against the University of Idaho on the grounds that the incident complained of was a battery, thereby entitling the University to immunity under relevant provisions of the Idaho Tort Claims Act. The decision of the trial court was affirmed by the Court of Appeals. We granted the Whites' petition for review and now affirm.

Carol and Kenneth White brought this action as a tort claim against the University of Idaho and Professor Richard Neher, alleging that Professor Neher, while acting within the course and scope of his employment with the University, struck Mrs. White, causing her injuries. The district court granted the University's motion for summary judgment, holding that under the Idaho Tort Claims Act, I.C. § 6-904(3), ¹ a governmental entity has no liability "for any claim which ... [a]rises out of ... battery" committed by an employee. The district court granted partial summary judgment in favor of the University and issued a Rule 54(b) certificate, certifying that the partial summary judgment was final and appealable. ²

The Whites appealed, and the case was assigned to the Court of Appeals. In a per curiam opinion, the Court of Appeals upheld the decision of the district court. We granted a review of the Court of Appeals decision.

The Court of Appeals opinion presents a clear and concise statement of the facts:

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 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 or offensive contact, his act constitutes negligence rather than the intentional tort of battery.

115 Idaho at 565, 768 P.2d at 828.

From these facts, the Court of Appeals concluded that Professor Neher did in fact commit a battery, reasoning that under Idaho law the intent required for the commission of a battery is simply the intent to cause an unpermitted contact not an intent that the contact be harmful or offensive. We agree with the Court of Appeals and affirm the decision of the district court.

The sole issue presented by these facts is whether Professor Neher's contact with Mrs. White constituted a battery. If it did, then the University of Idaho is immune from liability under I.C. § 6-904(3). That issue in turn revolves around the question of what type of intent is required to constitute a battery; i.e., must the defendant intend to harm or offend the plaintiff, or must the defendant simply intend to touch the plaintiff? On appeal, all parties stipulated that Professor Neher intended to touch Mrs. White but did not intend to harm or offend her.

Appellants' argument is essentially that, under Idaho law, a defendant must intend to either harm or offend the plaintiff in order for such contact to constitute a battery, and since Professor Neher did not intend to harm or offend Mrs. White, his touching could not have been a battery. Appellants assert that the decisions of this Court, e.g., Doe v. Durtschi, 110 Idaho 466, 716 P.2d 1238 (1986), require intentional conduct, i.e., intent to harm or offend, in order to constitute a battery. While we stated in Doe that, "A battery, on the other hand, requires intentional bodily contact which is either harmful or offensive," 110 Idaho at 471, 716 P.2d at 1243, that does not mean that the person has to intend that the contact be harmful or offensive.

In Rajspic v. Nationwide Mut. Ins. Co., 110 Idaho 729, 718 P.2d 1167 (1986) (Rajspic II ), we held that the intent necessary to commit a battery was intent to commit the act, not the intent to cause harm. The Rajspic case involved an altercation in which one William Brownson was shot and injured by Grace Rajspic. Rajspic was charged with criminal assault but was acquitted because of insanity. Subsequently, Brownson sued for and recovered a $14,000 judgment against Rajspic for the battery resulting from the shooting. Following entry of judgment in the battery action, Rajspic brought suit against her insurance company to indemnify her against the judgment, and the insurance company denied coverage on the basis of an intentional tort exclusion in the insurance policy. After the first remand from this Court in Rajspic v. Nationwide Mut. Ins. Co., 104 Idaho 662, 662 P.2d 534 (1983) (Rajspic I ), the trial court granted Nationwide's motion for summary judgment denying liability, reasoning that because "the jury in Brownson found Grace Rajspic had committed an intentional tort [battery] the Rajspics were collaterally estopped from litigating whether the injuries caused by Mrs. Rajspic's conduct [was an intentional tort excluded] by the insurance policy." On appeal in Rajspic II, 110 Idaho at 732, 718 P.2d at 1170 (1986), this Court reversed the trial court's granting of summary judgment in favor of Nationwide on the issue of liability, holding that the intent required to commit the tort of battery was not the same as the intent required for the intentional tort exclusion in the insurance policy, and therefore collateral estoppel did not apply. The Court held that the intent necessary to trigger the intentional tort exclusion in the insurance policy was an intent by Rajspic to cause injury to Brownson. However, the Court stated that the only intent necessary to prove the battery in the civil action was an intent to do the act, not intent to do harm or offense. Had the Court in Rajspic II adopted the position advocated by appellants in this case, i.e., that battery requires an intent to harm or offend, then collateral estoppel would have applied, and the Court in Rajspic II would not have reversed the trial court.

The Court in Rajspic II approved Instruction 19 which had been given in Brownson's underlying civil battery action in which Brownson obtained his $14,000 judgment against Rajspic, describing Instruction 19 as "a correct application of the issue of a tortfeasor's sanity when applying it to the elements of intentional torts of assault and battery." The Court stated regarding Instruction No. 19:

What the jury found in Brownson was that Mrs. Rajspic was capable of forming the intent to commit a battery. That intent, the jury was instructed, did not mean she had to have formed the specific intent to do injury. Instruction No. 19, the instruction as to Mrs. Rajspic's insanity, read:

"Insanity is not a defense to a civil action for assault and battery, intentionally committed by the insane person, and the intent referred to is the intent to do the act complained of. It is not required that the assailant intend to kill or injure the party attacked. Thus, if you find that Mrs. Rajspic committed a battery against the plaintiff by shooting him intentionally, rather than accidentally, she should not be relieved from liability because she was insane at the time of the shooting and incapable of malice or specific intent to do injury."

This instruction ... is a correct application of the issue of a tortfeasor's sanity when applying it to the elements of the intentional torts of assault and battery. It is not, however, a correct application of the issue of an insured's sanity when applying it to an insurance clause that excludes coverage for injuries caused intentionally by the insured. Hence, the two issues are distinct.

110 Idaho at 733-734, 718 P.2d at 1171-1172.

Instruction No. 19, approved in Rajspic II, dealing with insanity as a defense to a civil action for battery, specifically states that the intent requirement for battery is simply the "intent to do the act complained of." That instruction was supplemented by Instruction No. 12, another instruction given to the jury in the underlying case of Brownson v. Rajspic (Civil Case No. 4886), which stated, "The intent necessary to constitute civil battery means an intent to do the act which causes the harm." We thus recognized in Rajspic II that the intent ...