Janelsins v. Button

ELLEN L. HOLLANDER, Judge, Specially Assigned. Harry Janelsins, appellant, has appealed from a judgment entered against him in the Circuit Court for Baltimore County in a civil battery action instituted by Stephen Button, appellee. After a non-jury trial, the court awarded $15,750.00 in compensatory damages to Button, but denied his request for punitive damages. Janelsins presents the following question for consideration: “Was the evidence presented to the Court legally sufficient to find that the Appellant committed a civil battery upon the Appellee?” He does not address that question in his appeal brief, however.

Instead, he argues that Button either consented to the battery or assumed the risk of injury. Button has filed a cross-appeal from the trial court’s refusal to award punitive damages. In all respects, we shall affirm. ³⁴ On June 28, 1991, Janelsins was a patron of the Manor Tavern, where Button worked as a “bar back.” 1 After Janelsins had consumed enough alcohol either to pass out or fall asleep at the bar, Mark Green, the owner of the Manor Tavern, instructed Button to help escort Janelsins to his car. Several patrons assisted in the process and agreed to drive Janelsins home.

Before the group reached the vehicle, Janelsins walked, unassisted, to a nearby fence, urinated, and walked back to his car. Although Janelsins admittedly had no memory of the events, it is apparent that he did not want anyone to force him into his car. Nor did he want anyone to drive it for him. When Button and the customers tried to push Janelsins into the back seat of his car, Janelsins resisted, shouting obscenities and threats.

As Button attempted to put Janelsins’s legs in the car, Janelsins kicked Button in the face. As a result, Button lost a tooth, and suit followed. 2 At the conclusion of the trial, Janelsins moved for judgment. He argued that Button had assumed the risk of injury by attempting to force Janelsins into the car. Judge Barbara Kerr Howe disagreed and denied Janelsins’s motion. 3 She concluded that Janelsins was liable for civil battery and rendered judgment in favor of Button.

Discussion Preliminarily, relying on Maryland Rule 8-504(a)(4, 5) and Monumental Life Ins. Co. v. U.S. Fidelity & Guarantee Co., 94 Md.App. 505, 544 , 617 A.2d 1163 , cert. denied, 330 Md. 319 , 624 A.2d 491 (1993), Button argues that Janelsins’s failure ³⁵ to raise the issues of assumption of risk and consent in the Questions Presented section of his appeal brief constitutes waiver of those issues. We disagree. In Monumental, the appellant failed entirely to include anywhere in the appeal brief an argument on certain issues, although the appellant referenced the argument as having been made elsewhere.

Holding these omissions as a waiver, we declined to reach the merits of the issues. 94 Md.App. at 544 , 617 A.2d 1163 . Janelsins’s actual Question Presented does not specifically mention consent or assumption of risk, but, in a generous reading of his brief, those issues appear in the argument section. 4 Moreover, the issue of assumption of risk was expressly raised at trial, and the issue of consent was implicitly raised. Accordingly, the issues of consent and assumption of risk have been preserved. See Prince George’s Co. Council v. Offen, 334 Md. 499 , 639 A.2d 1070 (1994).

I. Insufficiency of Evidence Claim A battery is the “unpermitted application of trauma by one person upon the body of another person.” McQuiggan v. Boy Scouts of America, 73 Md.App. 705, 714 , 536 A.2d 137 (1988) (citation omitted). Accord, Saba v. Darling, 72 Md. App. 487, 491 , 531 A.2d 696 (1987), aff'd, 320 Md. 45 , 575 A.2d 1240 (1990). Accidental or inadvertent contact does not constitute battery. Richard J. Gilbert & Paul T. Gilbert, Maryland Tort Law Handbook § 3.1, at 29 (2d ed. 1992) (hereinafter, “Gilbert Rather, the tort of battery requires intent by the actor “to bring about a harmful or offensive contact____ [It is] confined to intentional invasions of the interests in freedom from harmful or offensive contact.” 5 Fowler V. Harper, et al., 1 The Law of Torts § 3.3, at 272-73, 276 (2d ed. 1986) (hereinafter, “Harper ”).

See also, Ghassemieh v. ³⁶ Schafer, 52 Md.App. 31, 38 , 447 A.2d 84 , cert. denied, 294 Md. 543 (1982). Janelsins’s insufficiency of the evidence argument must fail. The evidence, including Janelsins’s threats and his flailing about, adequately supports a finding that he intended to strike Button. Although Janelsins apparently was inebriated at the time of the incident, his voluntary intoxication does not vitiate the intent element of battery.

State v. Hatfield, 197 Md. 249, 253 , 78 A.2d 754 (1951). See also, Saba v. Darling, 320 Md. 45 , 575 A.2d 1240 (1990) (intoxicated defendant can still form intent to commit battery); 6A C.J.S., Assault & Battery, § 15, at 337 (1975); cf. Hook v. State, 315 Md. 25, 28-29 , 553 A.2d 233 (1989) (voluntary drunkenness is not a defense to a general intent crime, including second-degree murder); Smith v. Branscome, 251 Md. 582, 592-96 , 248 A.2d 455 (1968) (in a tort action, person who negligently or intentionally becomes intoxicated must be held to the same standard of conduct as a sober person); Martin v. State, 228 Md. 311, 316 , 179 A.2d 865 (1961) (voluntary drunkenness does not preclude the formation of intent to kill, and generally is not a defense to a crime). Moreover, as we discuss below, to the extent that any defenses were available to Janelsins, the trial court properly found them inapplicable.

II

Assumption Of Risk Janelsins argues that Button assumed the risk of Janelsins’s conduct, and is therefore barred from recovery. It is unclear whether Janelsins contends that assumption of risk is tantamount to consent or that the doctrine of assumption of risk applies to civil battery actions independent of the doctrine of consent. In either event, Janelsins does not succeed. We explain.

A. Assumption Of Risk As Tantamount To Consent To the extent that Janelsins argues that the evidence was insufficient to constitute battery based on Button’s consent, ³⁷ Janelsins cannot prevail; that issue was properly resolved by the trier of fact. “All intended wrongs have in common the element that they are inflicted without the consent of the victim. Those who, with full knowledge, assent to the invasion of their interests may not complain.” 1 Harper, supra, § 3.10, at 298. The general rule—that a person cannot recover damages where he has consented to the wrong—applies in civil battery actions. 6 Am.Jur.2d Assault & Battery, § 155, at 130-32 (1963 & Supp.1994). Therefore, a plaintiffs consent may be a complete defense in a battery action.

McQuiggan, 73 Md.App. at 714 , 536 A.2d 137 (consent, if established, negates the wrongful element of defendant’s act). See also, 1 Harper, supra, § 3.10, at 298-309, and 4 Harper, § 22.5, at 297. The gist of the action is not [the defendant’s] hostile intent but the absence of consent to the contact on plaintiffs part. Ghassemieh, 52 Md.App. at 38 [ 447 A.2d 84 ].

When a plaintiff “manifests a willingness that the defendant engage in conduct and the defendant acts in response to such a manifestation,” [Prosser & Keeton, supra], § 18, at 113, “his consent negatives the wrongful element of the defendant’s act, and prevents the existence of a tort.” Id. at 112. McQuiggan, 73 Md.App. at 714 , 536 A.2d 137 . See also, Gilbert, supra, §§ 3.1 n. 10 (citing McQuiggan) and 3.2, at 29-31; Prosser & Keeton, supra, § 18, at 112-13; 6A C.J.S., Assault & Battery, §§ 16-17, at 337-40; 6 Am.Jur.2d, Assault & Battery, §§ 155 and 157. Consent occurs when a plaintiff “manifests a willingness that the defendant engage in conduct and the defendant acts in response to such a manifestation.” W. Page Keeton, et al., Prosser & Keeton on the Law of Torts, § 18, at 113 (5th ed., 1984) (hereinafter, “Prosser & Keeton ”).

Accord, Restatement (2d) Torts, § 892(1), at 362 (consent is “willingness in fact for conduct to occur”). Consent may be inferred from words, actions, or inactions if reasonably understood by another to indicate consent, even if not expressly communicated to the actor. Id., § 892. But consent “must be knowingly and ³⁸ intelligently given, and not the result of fraud or incompetency____” 6A C.J.S., Assault & Battery, § 16.

Where the plaintiff consented to the battery itself, the consent extends to ordinary consequences stemming from it. 1 Harper, supra, § 3.10, at 299; see also, J.D. Lee & Barry Lindahl, Modern Tort Law: Liability & Litigation, §§ 9.10-9.14 (1993); Prosser & Keeton, supra, § 18, at 114. A split has developed among various jurisdictions as to whether the defense of consent is available to a defendant if the battery constitutes a crime or, as here, a breach of peace. 1 Harper, supra, § 3.10, at 306-08 & nn. 36-38 (collecting majority and minority cases). The majority rule holds that, when an assault or battery amounts to a breach of the peace, neither party may raise the other party’s consent as a defense, because public policy against such breaches would be frustrated. Id.

These courts are of the view that when the battery constitutes a breach of the peace, “the fact that the parties agreed to fight is no defense to an action for assault and battery, although such consent will probably materially reduce the measure of damages.” Gilbert, § 3.2, at 31 (footnotes omitted). Although some treatises support the majority rule, see, e.g., Id.; Stuart M. Speiser, et al., The American Law of Torts, § 26:10, at 895 .(1986); 6A C.J.S. Assault & Battery, §§ 16-17, at 337-40; 6 Am.Jur.2d Assault & Battery, §§ 155 and 157 (1963 & Supp.1994), other authorities roundly criticize it in what we shall call the minority rule. See, e.g., 1 Harper, supra, at 307; Frances H. Bohlen, Consent As Affecting Civil Liability, 24 Colum.L.Rev. 819 (1924); Restatement (2d) Torts, §§ 60, 892C; cf, Id., § 496F (plaintiffs assumption of risk bars recovery even when defendant’s conduct violates a general statute). Maryland has not yet expressly joined with either group, although at least one commentator believes that this State follows the majority.

Gilbert, supra, § 3.2, at 31 (comparing McQuiggan with Md.Ann.Code of 1957, Art. 27, §§ 123(a) and 124 (1982)). ³⁹ We need not decide here which view to adopt. Even if Maryland were to follow the minority rule, which permits the defense of consent if the battery constitutes a breach of peace, the issue of consent was necessarily resolved at trial. Lack of consent to the contact is, as we have noted, an essential component of the tort. Gassemieh, 52 Md.App. at 38 , 447 A.2d 84 ; see also, Prosser & Keeton, supra, § 18, at 112 (quoting Justice Holmes in Ford v. Ford,, 143 Mass. 577 , 10 N.E. 474, 475 (1887)).

The trial court expressly concluded that Janelsins committed a battery and, at least implicitly, found as a factual matter the absence of consent. As the finder of fact, it was Judge Howe’s responsibility to weigh the credibility of the witnesses. U.S. Money v. Kinnamon, 326 Md. 141, 149-51 , 604 A.2d 64 (1992). Her decision was not clearly erroneous.

B. Assumption Of Risk Janelsins seemingly argues that the doctrine of assumption of risk—as distinguished from consent—bars recovery in this case for the tort of battery. As the Court observed in Schroyer v. McNeal, 323 Md. 275, 284 , 592 A.2d 1119 (1991), the doctrine of assumption of risk, while well settled, is nonetheless difficult to apply. No Maryland case has addressed the issue of whether the doctrine is applicable to a civil battery action. We hold that it is not a viable defense in an action for civil battery.

In general, a plaintiff may be legally found to have assumed the risk of injury created by the reckless or negligent conduct of a defendant when, with full knowledge and appreciation of a risk, the plaintiff freely and voluntarily encounters the danger. Prosser & Keeton, supra, § 68, at 486-87; Restatement (2d) Tonis, § 496A. 6 ⁴⁰ According to the Restatement, the distinctions between the doctrines of assumption of risk and consent are only semantic. The defense whose general principle is stated in this Section is given the name, in most jurisdictions, of “assumption of risk.” A few courts ... have applied the same principle to other situations under the