Wishnatsky v. Huey, 980067CA

• Decision Date: 15 September 1998
• Docket Number: No. 980067CA,980067CA
• Parties: 1998 ND APP 8 Martin WISHNATSKY, Plaintiff and Appellant, v. David W. HUEY, Defendant and Appellee. Civil
• Court: North Dakota Court of Appeals

Page 859

584 N.W.2d 859

1998 ND APP 8

Martin WISHNATSKY, Plaintiff and Appellant, v. David W. HUEY, Defendant and Appellee.

Civil No. 980067CA.

Court of Appeals of North Dakota.

Sept. 15, 1998.

Martin Wishnatsky, Fargo, pro se.

Andrew Moraghan, Assistant Attorney General, Attorney General's Office, Bismarck, for defendant and appellee.

PER CURIAM.

¶1 Martin Wishnatsky appealed a summary judgment dismissing his battery action against David W. Huey, and an order denying his motion for an altered judgment. We conclude, as a matter of law, that no battery occurred, and we affirm the judgment and the order.

¶2 On January 10, 1996, Huey, an assistant attorney general, was engaged in a conversation with attorney Peter B. Crary in Crary's office. Without knocking or announcing his entry, Wishnatsky, who performs paralegal work for Crary, attempted to enter the office. Huey pushed the door closed, thereby pushing Wishnatsky back into the hall. Wishnatsky reentered the office and Huey left.

¶3 Wishnatsky brought an action against Huey, seeking damages for battery. ¹ Huey moved for summary judgment of dismissal. The trial court granted Huey's motion and a judgment of dismissal was entered. Wishnatsky moved to alter the judgment. The trial court denied Wishnatsky's motion.

¶4 Wishnatsky appealed, contending the evidence he submitted in response to Huey's motion for summary judgment satisfies the elements of a battery claim and the trial court erred in granting Huey's motion. Wishnatsky also contends Huey is not entitled to prosecutorial or statutory immunity.

¶5 Summary judgment is a procedural device for the prompt and expeditious disposition of a controversy without trial if either party is entitled to judgment as a matter of law, if no dispute exists as to either the material facts or the inferences to be drawn from undisputed facts, or if resolving factual disputes would not alter the result. Perry Center, Inc. v. Heitkamp, 1998 ND 78, p 12, 576 N.W.2d 505. "In considering a motion for summary judgment, a court must view the evidence in the light most favorable to the party opposing the motion, who must be given the benefit of all favorable inferences which reasonably can be drawn from the evidence." Mougey Farms v. Kaspari, 1998 ND 118, p 12, 579 N.W.2d 583. "Disputes of fact become questions of law if reasonable persons can draw only one conclusion from the evidence." Id. In reviewing a summary judgment, an appellate court views the evidence in the light most favorable to the non-moving party to determine if the trial court properly granted summary judgment as a matter of law. Tuhy v. Schlabsz, 1998 ND 31, p 5, 574 N.W.2d 823. On a defendant's motion for summary judgment, the question for the court is "whether a fair-minded jury could return a verdict for the plaintiff on the evidence presented. The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

¶6 "In its original conception [battery] meant the infliction of physical injury." VIII Sir William Holdsworth, A History of English Law 422 (2d Impression 1973). By the Eighteenth Century, the requirement of an actual physical injury had been eliminated:

At Nisi Prius, upon evidence in trespass for assault and battery, Holt, C.J. declared,

1. That the least touching of another in anger is a battery. 2. If two or more meet in a narrow passage, and without any violence or design of harm, the one touches the other gently, it is no battery. 3. If any of them use violence against the other, to force his way in a rude inordinate manner, it is a battery; or any struggle about the passage, to that degree as may do hurt, is a battery. Vid.Bro.Tresp. 236. 7 E. 4, 26. 22 Ass. 60. 3 H. 4, 9.

Cole v. Turner, Pasch. 3 Ann., 6 Mod. 149, 90 Eng.Rep. 958 (1704). Blackstone explained:

The least touching of another's person willfully, or in anger, is a battery; for the law cannot draw the line between different degrees of violence, and therefore totally prohibits the first and lowest stage of it: every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner.

3 William Blackstone, Commentaries

Page 120

On the other hand, "in a crowded world, a certain amount of personal contact is inevitable, and must be accepted." W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 9, at 42 (5th ed.1984).

¶7 The American Law Institute has balanced the interest in unwanted contacts and the inevitable contacts in a crowded world in Restatement (Second) of Torts §§ 18, 19 (1965):

18. Battery: Offensive Contact

(1) An actor is subject to liability to another for battery if

(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and

(b) an offensive contact with the person of the other directly or indirectly results.

(2) An act which is not done with the intention stated in Subsection (1,a) does not make the actor liable to the other for a mere offensive contact with the other's person although the act involves an unreasonable risk of inflicting it and, therefore, would be negligent or reckless if the risk threatened bodily harm.

....

19. What Constitutes Offensive Contact

A bodily contact is offensive if it offends a reasonable sense of personal dignity.

Comment c to § 18 notes that the contact need not be "directly caused by some act of the actor" and also notes that "the essence of the plaintiff's grievance consists in the offense to the dignity involved in the unpermitted and intentional invasion of the inviolability of his person and not in any physical harm done to his body." Comment a to § 19 explains what kind of conduct offends a reasonable sense of personal dignity:

In order that a contact be offensive to a reasonable sense of personal dignity, it must be one which would offend the ordinary person and as such one not unduly sensitive as to his personal dignity. It must, therefore, be a contact which is unwarranted by the social usages prevalent at the time and place at which it is inflicted.

¶8 Huey moved for summary judgment of dismissal, because, among other things, "as a matter of law, a battery did not occur on January 10, 1996." Huey supported the motion with his affidavit stating in part:

8. That Attorney Crary and I had settled into a serious discussion about the case and had established a good rapport when the door to his office suddenly swung open without a knock. An unidentified individual carrying some papers then strode in unannounced. I had not been told that anyone would be entering Attorney Crary's office during the private meeting.... I subsequently learned that the...