Free Supplement - District Court of Arizona - Arizona

Case 2:O3—cv—O1887-I\/IHI\/I Document 129-4 Filed O2/O2/2006 Page 1 013

Page 2 of 3
768 P.2d 827 Page I
115 idaho 564, 768 P.2d 827, 52 Ed. Law Rep. 308
(Cite as: 115 Idaho 564, 768 P.2d 827)
F> 37k2 Most Cited Cases
Court of Appeals of Idaho. University professors tmauthorized and allegedly
Kenneth F. WHITE and Carol S. White, husband harmful touching of another individual by walking
and wife, Plaintiffs-Appeliants, up behind her and touching her back with both of
v. his
The UNIVERSITY OF IDAHO and Richard Neher, hands in movement described as one a pianist
Defendants-Respondents. would make in striking and liihng fingers from
No. 17292. keyboard constituted tort of battery for which state
university could not be sued under Tort Claims Act;
Feb. 3, 1989. it was undisputed that professor intended to touch
individual, and it was immaterial whether or not he
Individual sued state university and university intended to cause harm or injury. I.C. § 6-901 et
professor alleging that professor had caused injury sec;.
to individual when he walked up behind her and **827 *564 L. Kim McDonald, Nampa and Harry
unexpectedly touched her back with both of his M. Philo (argued), Detroit, Mich., for
hands in a movement described as one a pianist plaintiffs-appellants.
would make in striking and lifting fingers from a
keyboard. The Third Judicial District Court, Richard Stubbs of Quane, Smith, Howard & Hull,
Canyon County, J. William Hart, J., granted Boise, for defendant-respondent, University of
university‘s motion for summary judgment, and Idaho.
appeal followed. The Court of Appeais held that
professors intentional touching of individual Bobbie K. Dominick of Elam, Burke & Boyd,
constituted battery for which university could not be Boise, for defendant-respondent, Richard Neher.
held liable under Tort Claims Act.
PER CUIHAM.
Affirmed.
,_ Carol and Kenneth White brought this action on a
Wesiileadnotes tort claim against the University of Idaho and
Professor Richard Neher, alleging that the professor
{I] Assault and Battery €7*°2 had caused injuries to Carol White. The district
37k2 Most Cited Cases _ court granted the University's motion for summary
Tort of battery requires intentional bodily contact judgment holding that, under the Idaho Tort Ciaims
which is either harmful or offensive. Act, a governnientai entity **828 *565 has no
liabiiity "for any claim which [a}rises out of
{2] Assault and Battery @3 battery" committed by an employee. i.C. § 6-904(3)
37k3 Most Cited Cases . {FN!] The Whites' appeal presents a singie issue
Intent element of tort of battery does not require of law: whether Professor Neher’s intentional and
desire or purpose to bring about specific result or unpermitted touching of Mrs. White constituted a
injury; it is satisfied if actors affirmative act causes battery. We agee with the district court that it did
intended contact which is unpermitted and which is and we affirm.
harmfui or offensive.
l FNE. An employee may also enjoy
[3] Assanit and Battery $-**2 immunity under this section if acting
© 2006 Thomson/West. No Claim to Orig. {5.8. Govt. Works.
Case 2:03-cv—O_1887-IVIHIVI Document 129-4 Filed O2/O2/2006 Page 2 of 3

Page 3 of 3
768 P.2d 827 Page 2
115 idaho 564, 768 P.2d 827, 52 Ed. Law Rep. 308
{Cite as: 115 Idaho 564, 768 P.2d 827)
within the course and scope of his Professor Neher did not intend to cause harm,
employment. The district c0m·t‘s summary injury or offensive contact, his act constitutes
judgment ordewcertitied as final for negligence rather than the iritentional tort of battery.
purposes of appeal, I.R.C.P. 5~4(b) We disagree.
—~expressly did not decide whether
Professor Neher was acting within the {l][2}[3] The tort of battery requires intentional
scope of his employment. bodily contact which is either harmful or offensive.
Doe v. Durtschf, 110 Idaho 466, 716 P.2d 1238
Summary judgment is an appropriate way to (1986) (citing RESTATEMENT (SECOND) OF
resolve this case. There are no genuine issues of TORTS § 13 (1965)). The intent element of the
material fact; the case simply calis for the tort of battery does not require a desire or purpose
application of law to undisputed facts. i.R.C..P. to bring about a specific result or injury; it is
56(c). In such cases we exercise free review. satisfied if the actor‘s affirmative act causes an
intended contact which is unpermitted and which is
Professor Neher and Mrs. White had long been harmful or offensive. See Rtyspic v. National
acquainted because of their mutual interest in Mutual Ins. Co., 110 Idaho 729, 718 P.2d IE6?
music, specifically, the piano. Professor Neher was (1986); RESTATEMENT (SECOND) OF TORTS
a social guest at the Whites home when the incident §§ SA, 16, 18 and 20 (1965). Indeed, the contact
here occurred. One morning Mrs. White was and its result may be physically harmless. Thus, a
seated at a counter writing a resume for inclusion in person may commit a battery when intending only a
the University's rnusic department: newsketter. joke, or a compEiment~—where an unappreciated kiss
Unanticipateci by Mrs. White, Professor Neher is bestowed without consent, or a misguided effort
walked up behind heriaud touched her back with is made to render assistance. PROSSER Sc
both of his hands in a movement Eater described as KEATON, THE LAW OF T ORTS §§ 8, 9 (5th ed.
one a pianist would make in striking and Eifting the 1984).
fingers from a keyboard. The resulting contact
generated unexpectedly harmful injuries, according it is undisputed that Professor Neher intended to
to the Whites. For puxposes of summary judgment, touch Mrs. White, though he did not intend to cause
we deem these allegations to be true. Mrs. White harm or injury. His lack of any specific intent to
suffered thoracic outlet syndrome on the right side harm or injure Mrs. White is immaterial. Professor
of her body, requiring the removal of the first rib on Nehefs affirmative act caused an intended contact
the right side. She also experienced scarring of the which was unpermitteci, offensive aud, apparently,
brachial piexus nerve which necessitated the harmful. Such voluntary contact constitutes the tort
severing ofthe scalenus anterior muscles. of battery. Accordingly, the district courts grant of
summary judgment is affirmed. Costs to the
Both Professor Neher and Mrs. White gave University of idaho. No attorney fees on appeal.
deposition testimony which is summarized as
follows. Professor Neher stated he intentionally IE5 Idaho 564, 768 P.2d 827, 52 Ed. Law Rep. 308
touched Mrs. White‘s back, but his purpose was to
demonstrate the sensation of this particular END OF DOCUMENT
movement by a pianist, not to cause any harm.
Professor Neher explained that he has occasionaily
used this contact method in teaching his piano
students. Mrs. White said Professor Neher's act
took her by surprise and was ziomconsensual. Mrst
White further remarked that she would not have
consented to suciz contact and that she found it
offensive. The Whites argue that because
© 2006 ThomsonfW est. No Claim to Orig. U.S. Govt. Works.
http¤//pmseshs-svvsfsssvsmH+m¤1?dooea¤‘mémm2oaHTN1tr@&r¤oe¢o¤tam58¤¤®@g@r1s.¤r 2/2/2006

Case 2:03-cv-01887-MHM

Document 129-4

Filed 02/02/2006

Page 1 of 3

Case 2:03-cv-01887-MHM

Document 129-4

Filed 02/02/2006

Page 2 of 3

Case 2:03-cv-01887-MHM

Document 129-4

Filed 02/02/2006

Page 3 of 3