Nelson v. Carroll

CHASANOW, Judge. This case requires that we determine the extent to which a claim of accident may provide a defense to a civil action for battery arising out of a gunshot wound. Charles A. Nelson, the plaintiff in this case and the petitioner here, asserts that the trial court should have held Albert Carroll, the defendant and respondent, liable for the tort of battery as a matter of law, sending to the jury only the issue of damages. We agree with Nelson that a claim of “accident” provides no defense to a battery claim where the evidence is undisputed that Nelson was shot by Carroll as Carroll threatened and struck him on the side of his head with the handgun. ⁵⁹⁶ I. This is the second time this case has been before us.

In our earlier decision, we addressed the Court of Special Appeals’ conclusion that Nelson had failed to preserve his motion for judgment under Maryland Rule 8-131(a) because he had not stated with particularity all the reasons why the motion should be granted. See Md. Rule 2-519(a). We reversed, holding that Nelson had properly raised his reasons for seeking a motion for judgment. See Nelson v. Carroll, 350 Md. 247 , 711 A.2d 228 (1998).

We summarized the essential facts of this case in our earlier decision: “Carroll shot Nelson in the stomach in the course of an altercation over a debt owed to Carroll by Nelson. The shooting occurred on the evening of July 25, 1992, in a private nightclub in Baltimore City that Nelson was patronizing. Carroll, who was described as being a ‘little tipsy,’ entered the club and demanded repayment by Nelson of the $3,800 balance of an $8,000 loan that Carroll had made to Nelson. Nelson immediately offered to make a payment on account but that was unsatisfactory to Carroll.

At some point Carroll produced a handgun from his jacket. Carroll did not testify. There were only two witnesses who described how the shooting came about, Nelson and Prestley Dukes (Dukes), a witness called by Carroll. Dukes testified that when Nelson did not give Carroll his money Carroll hit Nelson on the side of the head with the handgun and that, when Nelson did not ‘respond,’ Carroll “went to hit him again, and when [Carroll] drawed back, the gun went off.’ Nelson, in substance, testified that he tendered $2,300 to Carroll, that Carroll pulled out his pistol and said that he wanted all of his money, and that the next thing that Nelson knew, he heard a shot and saw that he was bleeding.” Nelson, 350 Md. at 249 , 711 A.2d at 229 .

Carroll never testified. Because Prestley Dukes’ testimony was the only evidence supporting Carroll’s argument that his ⁵⁹⁷ shooting of Nelson was an accident, we quote the relevant parts: “[Carroll’s attorney]: [T]ell me what happened [when Carroll entered the nightclub]? [Dukes]: Well, when [Carroll] came in, he walked up and told [Nelson], asked him to give him his money. He didn’t give it to him, so he hit him. [Carroll’s attorney]: Okay. Now, did [Carroll] have the gun out when he came into the club? [Dukes]: Yes. [Carroll’s attorney]: Okay.

And you say he hit him on the side of the head? [Dukes]: Yeah. [Carroll’s attorney]: All right, and said, give me my money? [Dukes]: Yeah. [Carroll’s attorney]: All right. And what happened then? [Dukes]: Well. He didn’t respond to that. [Carroll’s attorney]: Okay. [Nelson] didn’t respond to it at all? [Dukes]: No. He said, ‘didn’t you hear[ ] me; give me my money.’ [Carroll’s attorney]: Okay. [Dukes]: And went to hit him again, and when he drawed back, the gun went off.” On cross-examination, Dukes further testified: “[Nelson’s attorney]: How much had Mr. Carroll had to drink that evening? [Dukes]: He had a little. [Nelson’s attorney]: He was drunk at that time, wasn’t he? [Dukes]: He was a little tipsy. [Nelson’s attorney]: And he was angry, too, wasn’t he? ⁵⁹⁸ [Dukes]: I imagine he was. He hit him aside the head with that gun. [Nelson’s attorney]: All right.

He was angry from the time he saw him, wasn’t he? Is that correct? [Dukes]: Yes. ❖ % ❖ [Nelson’s attorney]: Okay. And when he walked over to Mr. Nelson ... and asked him for his money, did he have the gun out at that point? [Dukes]: Yes. [Nelson’s attorney]: Had the gun out right from the beginning? [Dukes]: Yes. ^ $ ¡i* [Nelson’s attorney]: Okay. And was there anybody else around him? [Dukes]: It’s a crowd in there. * * * [Nelson’s attorney]: And what hand did Mr. Carroll have the gun in? * * * Had it in his left hand; hit him on the left side? [Dukes]: Yeah. [Nelson’s attorney]: Okay.

And then the gun went off? [Dukes]: Not then. No. [Nelson’s attorney]: Then he pulled back, and squeezed the trigger and the gun went off? ⁵⁹⁹ [Dukes]: Then he asked him, said, give me my money again, and he went to hit him again, and then it went off. [Nelson’s attorney]: All right....” Nelson testified to undergoing extensive medical treatment resulting from his gunshot wound. Immediately after being shot, Nelson lost consciousness as a result of blood loss and did not fully regain consciousness for three or four months, until November 1992. He continued to spend months in various hospitals and rehabilitation facilities, undergoing multiple operations.

He testified to the nearly complete loss of his eyesight. Carroll was subsequently arrested and charged with shooting Nelson. Carroll pled guilty to assault and illegal possession of a handgun, was convicted, and was serving a seven-year sentence at the time of the civil trial. 1 II. A. Nelson’s sole contention before this Court is that he was entitled to a motion for judgment on the issue of liability for battery.

He contends that the evidence that Carroll committed a battery is uncontested. Specifically, Nelson asserts that Carroll’s primary defense on the issue of liability—that the discharge of the handgun was accidental—is unavailable under the circumstances of this case. Preliminarily, it should be emphasized that the only defense raised by Carroll as to liability was that the actual shooting of the handgun was accidental. No evidence was produced to contest the other evidence relating to the course of events leading to the shooting.

Carroll does not dispute the testimony that he was at the nightclub the night Nelson was shot, that he openly carried the handgun and confronted Nelson ⁶⁰⁰ about a debt owed him, and that, out of anger, he struck Nelson with the handgun on the side of Nelson’s head at least once. Nor did Carroll present any evidence that would conflict with the testimony that Carroll was responsible for firing the shot that struck Nelson. The only point made in Carroll’s defense (and which apparently the jury believed) was that the actual gunshot occurred accidentally. Carroll’s counsel specifically conceded in his closing argument that Carroll “shouldn’t have gone in there with a gun.

He was wrong. But what he intended to do was to scare him.” A motion for judgment may be made at the close of evidence offered by an opposing party or after all the evidence has been presented. See Md. Rule 2-519(a). In considering a motion for judgment in a jury trial, “the court shall consider all evidence and inferences in the light most favorable to the party against whom the motion is made.” Md. Rule 2-519(b).

Our task, therefore, is to determine whether, considering the essential elements of a tort claim for battery, there is any dispute over material facts from which a jury could conclude that Carroll had not committed a battery when he shot Nelson. Since the only disputed fact relates to whether Carroll shot Nelson accidentally as he was striking him, we need only address the narrow question of whether, under the facts of this case, the defense that the shot was fired accidentally is capable of exonerating Carroll of liability. B. A battery occurs when one intends a harmful or offensive contact with another without that person’s consent. See Restatement (Second) of Torts § 13 & cmt. d (1965). “The act in question must be some positive or affirmative action on the part of the defendant.” Saba v. Darling, 320 Md. 45, 49 , 575 A.2d 1240, 1242 (1990).

See also Prosser & Keeton, The Law of Torts § 9, at 39 (5th ed.1984). A battery may occur through a defendant’s direct or indirect contact with the plaintiff. In this case, Carroll unquestionably committed a battery when he struck Nelson on the side of his ⁶⁰¹ head with his handgun. See Saba, 320 Md. at 49 , 575 A.2d at 1242 (observing that defendant’s striking of plaintiff in the face, causing injury to his jaw, was “the sine qua non of an intentional tort”).

Likewise, an indirect contact, such as occurs when a bullet strikes a victim, may constitute a battery. “[I]t is enough that the defendant sets a force in motion which ultimately produces the result....” Prosser & Keeton, The Law op Torts § 9, at 40 (5th ed.1984). Thus, if we assume the element of intent was present, Carroll also committed a battery when he discharged his handgun, striking Nelson with a bullet. Nelson’s action in the instant case focuses on the indirect contact of the bullet and not the battery that occurred when Carroll struck him on the head. It is the bullet that allegedly caused the harm for which Nelson seeks damages.

As the analysis that follows suggests, however, the circumstances surrounding the gunshot are relevant in determining whether a battery occurred. C. Carroll's defense that he accidentally discharged the handgun requires us to examine the “intent” requirement for the tort of battery. It is universally understood that some form of intent is required for battery. See Restatement (Second) of Torts § 13 (1965)(“An actor is subject to liability to another for battery if ... he acts intending to cause a harmful or offensive contact.... ” (Emphasis added)); Prosser & Keeton, The Law of Torts § 9, at 39 (5th ed. 1984)(Bat-tery requires “an act intended to cause the plaintiff ... to suffer such a contact....” (Emphasis added)); Harper, James & Gray, The Law of Torts § 3.3, at 3:9 (3d ed. 1996)(“[T]o constitute a battery, the actor must have intended to bring about a harmful or offensive contact or to put the other party in apprehension thereof.” (Emphasis added)(footnote omitted)).

It is also clear, however, that the intent required is not a specific intent to cause the type of harm that ⁶⁰² occurred: 2 “The defendant’s liability for the resulting harm extends, as in most other cases of intentional torts, to consequences which the defendant did not intend, and could not reasonably have foreseen, upon the obvious basis that it is better for unexpected losses to fall upon the intentional wrongdoer than upon the innocent victim.” (Footnote omitted). Prosser & Keeton, The Law of Torts § 9, at 40 (5th ed.1984). 3 On the other hand, a purely accidental touching, or one caused by mere inadvertence, is not enough to establish the intent requirement for battery. See, e.g., Steinman v. Laundry Co., 109 Md. 62, 66 , 71 A. 517, 518 (1908)(finding a lack of intent for battery where “[t]here [was] no pretense here that this contact of his knee with hers was wilful, angry or insolent, and the only inference from her testimony is that it was purely accidental, as in the case of one stumbling, and, in his fall coming in contact with the person of another.” (Emphasis added)). The intent element of battery requires not a specific desire to bring about a certain result, but rather a general intent to unlawfully invade another’s physical well-being through a harmful or offensive contact or an apprehension of ⁶⁰³ such a contact.

As Professors Harper, James, and Gray observe in their treatise, the intent element of battery must be carefully analyzed: “It has been seen that to constitute a battery a defendant’s conduct must be characterized by the factor of intent. But it is necessary to analyze the mental element more carefully. All that is necessary is (a) that the actor engage in volitional activity and (b) that he intend to violate the legally protected interest of another in his person. * * * Since it is the invasion of another’s interest that is intended, the actor takes the risk of the existence of a legal privilege to make it; it is no defense that the mistake is reasonable and due to no fault or negligence on the part of the actor. As in other cases of mistake, the actor must bear the losses incident thereto.” Harper, James & Gray, The Law of Torts § 3.3, at 3:13-14 (3d ed.1996).

Thus, innocent conduct that accidentally or inadvertently results in a harmful or offensive contact with another will not give rise to liability, but one will be liable for such contact if it comes about as a result of the actor’s volitional conduct where there is an intent to invade the other person’s legally protected interests. Even though intent is a subjective element usually left for the jury’s determination, there are circumstances under which the law will imply the intent element of an intentional tort or a crime. One such example in a battery case is found in Norman v. Insurance Co. of North America, 218 Va. 718 , 239 S.E.2d 902 (1978). Under facts less favorable to the plaintiff than those of the instant case, the Virginia Supreme Court addressed a trial court’s ruling that an assault and battery occurred as a matter of law, despite the defendant’s contention that the shooting was an accident.

Clark S. Norman, Jr., the owner of an apartment building, was removing the property of a tenant when he got into an argument with the